Upper Midwest Booksellers v. City of Minneapolis

• Decision Date: 25 February 1985
• Docket Number: No. Civ. 4-85-5.,Civ. 4-85-5.
• Citation: 602 F. Supp. 1361
• Parties: The UPPER MIDWEST BOOKSELLERS ASSOCIATION, a Minnesota corporation, and Harvey Hertz, d/b/a A Brother's Touch Bookstore, Plaintiffs, v. The CITY OF MINNEAPOLIS, a municipal corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

602 F. Supp. 1361

The UPPER MIDWEST BOOKSELLERS ASSOCIATION, a Minnesota corporation, and Harvey Hertz, d/b/a A Brother's Touch Bookstore, Plaintiffs, v. The CITY OF MINNEAPOLIS, a municipal corporation, Defendant.

No. Civ. 4-85-5.

United States District Court, D. Minnesota, Fourth Division.

February 25, 1985.

COPYRIGHT MATERIAL OMITTED

Randall D.B. Tigue, Volunteer Atty., Minnesota Civil Liberties Union, Minneapolis, Minn., for plaintiffs.

Robert J. Alfton, Minneapolis City Atty., and David M. Gross, Asst. City Atty., Minneapolis, Minn., for defendant.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on plaintiffs' motion for a preliminary and permanent injunction¹ restraining the City of Minneapolis from enforcing that portion of a city ordinance which would prohibit the open display of sexually explicit materials which are deemed harmful to minors.

FACTS

The action before the Court is a first amendment challenge to a Minneapolis city ordinance which requires that certain sexually explicit books, magazines, and other materials² deemed harmful to minors be kept in sealed wrappers and that the covers of certain materials be blocked with an opaque cover. Minneapolis Ordinances, § 385.131. Plaintiffs are the Upper Midwest Booksellers Association, an incorporated trade organization of booksellers, publishers, and representatives with members in Minnesota, Wisconsin, North and South Dakota, and Iowa, and Harvey Hertz, doing business as A Brother's Touch Bookstore. The parties have stipulated that under defendant's construction of the ordinance, plaintiffs may have material on display in their stores which would fall within the restrictions of the ordinance.

The challenged portion of the ordinance provides as follows:

(6) It is unlawful for any person commercially and knowingly to exhibit, display, sell, offer to sell, give away, circulate, distribute, or attempt to distribute any material which is harmful to minors in its content in any place where minors are or may be present or allowed to be present and where minors are able to view such material unless each item of such material is at all times kept in a sealed wrapper.

(a) It is also unlawful for any person commercially and knowingly to exhibit, display, sell, offer to sell, give away, circulate, distribute, or attempt to distribute any material whose cover, covers, or packaging, standing alone, is harmful to minors, in any place where minors are or may be present or allowed to be present and where minors are able to view such material unless each item of such material is blocked from view by an opaque cover. The requirement of an opaque cover shall be deemed satisfied concerning such material if those portions of the cover, covers, or packaging containing such material harmful to minors are blocked from view by an opaque cover.

§ 385.131(6).³ The effect of the above provision is that the contents and the covers of material are judged separately under the ordinance. If the contents of a book or magazine contain material that is deemed harmful to minors, the publication must be kept in a sealed wrapper. If the cover of a book or magazine visually depicts proscribed material, those portions of the cover must be blocked with an opaque cover. A publication could conceivably have a cover which falls within the ordinance and contents which do not, or vice versa. "Harmful to minors" is defined in the ordinance as follows:

"Harmful to Minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, or sexual excitement, when it:

(1) predominantly appeals to the prurient, shameful, or morbid interest of minors in sex; and

(2) is patently offensive to contemporary standards in the adult community as a whole with respect to what is suitable sexual material for minors; and

(3) taken as a whole, lacks serious literary, artistic, political or scientific value.

Id. § 385.131(3)(e).

The ordinance contains two significant exemptions. First, the ordinance does not apply if minors are not able to view the proscribed material or the covers of such material. Businesses can comply with the ordinance by totally barring minors from the establishment or by physically segregating the proscribed materials so that minors do not have access to and cannot view the materials, and by posting a sign which reads "Adults Only — you must be 18 to enter." Id. § 385.131(6)(b). The second exemption applies to recognized and established schools, religious institutions, museums, medical clinics and physicians, hospitals, public libraries, governmental agencies, and individuals in a parental relationship with the minor. Id. § 385.131(7)(a), (b).

There have been no prosecutions under the ordinance. Plaintiffs brought the instant action for declaratory and injunctive relief shortly after the ordinance took effect on January 1, 1985, and the Court issued a temporary restraining order enjoining enforcement of the ordinance on January 7, 1985.

DISCUSSION

Although the language of the first amendment speaks in absolute terms, it is clear that not all pure speech falls within the protection of the amendment. In Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the United States Supreme Court stated that

there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene.... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Id. at 571-572, 62 S.Ct. at 768-769 (footnotes omitted). It is now well settled that obscene material is not within the area of constitutionally protected free speech or press. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). Because of the inherent dangers involved in regulating any type of expression, however, the Supreme Court has on several occasions revised and refined the definition of obscenity, in order to develop appropriate limits on the permissible scope of regulation. See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Miller v. California. Under the current definition of obscenity, as set forth in Miller v. California, prohibitions on obscene materials must "be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Miller, 413 U.S. at 24, 93 S.Ct. at 2614.

The ordinance in question in the instant case is not, of course, aimed at regulating materials which are obscene as to adults. Rather, the ordinance is designed to protect children from being exposed to sexually explicit material. While minors are entitled to a significant degree of first amendment protection, see Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Supreme Court has squarely held that a state or municipality may place stricter controls on materials available to youths than on those which are available to adults. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). In Ginsberg, the Court upheld a New York law which prohibited the sale of non-obscene (as to adults), sexually explicit literature to minors under the age of 17. The Court approved the concept of "variable obscenity," holding that legislation may constitutionally adjust the definition of obscenity "`to social realities by permitting the appeal of ... sexually explicit material to be assessed in terms of the sexual interests ...' of ... minors." Id. at 638, 88 S.Ct. at 1279, quoting Mishkin v. New York, 383 U.S. 502, 509, 86 S.Ct. 958, 963, 16 L.Ed.2d 56 (1966).

The Court in Ginsberg pointed to two governmental interests which justified the limitations on the availability of sexually explicit material to minors which were contained in the New York statute. First, the Court noted that "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society," and that parents and others responsible for children's well-being "are entitled to the support of laws designed to aid discharge of that responsibility." 390 U.S. at 639, 88 S.Ct. at 1280. Second, the Court stated that government "has an independent interest in the well-being of its youth." Id. at 640, 88 S.Ct. at 1281. The Court quoted with approval the comments of Chief Judge Fuld of the New York Court of Appeals, in his concurring opinion in People v. Kahan, 258 N.Y.S.2d 391, 392, 15 N.Y.2d 311, 206 N.E.2d 333 (1965):

While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults.

390 U.S. at 640, 88 S.Ct. at 1281.⁴ After reciting the above two government interests, the Court applied a mere rationality standard to determine whether the legislature could constitutionally determine that exposure to the materials in question was in fact harmful to minors. It found that the legislature's determination was not irrational because...