Video Software Dealers Ass'n v. Webster

• Decision Date: 01 July 1992
• Docket Number: No. 91-2797WM,91-2797WM
• Citation: 968 F.2d 684
• Parties: , 20 Media L. Rep. 1384 VIDEO SOFTWARE DEALERS ASSOCIATION, a Delaware corporation; Missouri Retailers Association, a Missouri corporation; Missouri Grocers' Association, a Missouri corporation; Motion Picture Association of America, Inc., a New York corporation; Video Express, Inc., doing business as Applause Video, a Missouri corporation; Bailey's C.C. Enterprises, Inc., a Missouri corporation, for themselves & as representatives of a class of retailers & distributors that sell or rent or maintain video cassettes or other reproduction devices in the State of Missouri that might be subject to regulation under a newly-enacted Missouri statute entitled "CCS HCS HB 225" , 1st Reg.Sess. 85th General Assembly, an Act to Repeal Section 573.010, R.S.Mo.Supp.1988, relating to pornography, & to enact in lieu thereof three new sections relating to the same subject, with penalty provisions, & who object to the suppression of constitutionally protected expression by that Act, Appellees, v. William L. WEBSTER, Attorney General, State of Missouri; Richard Callahan, Prosecuting Attorney for Cole County in his official capacity & as a representative of the class of all persons empowered to enforce the Act referred to above, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 684

968 F.2d 684

61 USLW 2043, 20 Media L. Rep. 1384

VIDEO SOFTWARE DEALERS ASSOCIATION, a Delaware corporation;

Missouri Retailers Association, a Missouri corporation;

Missouri Grocers' Association, a Missouri corporation;

Motion Picture Association of America, Inc., a New York

corporation; Video Express, Inc., doing business as

Applause Video, a Missouri corporation; Bailey's C.C.

Enterprises, Inc., a Missouri corporation, for themselves &

as representatives of a class of retailers & distributors

that sell or rent or maintain video cassettes or other

reproduction devices in the State of Missouri that might be

subject to regulation under a newly-enacted Missouri statute

entitled "CCS HCS HB 225"

[Truly Agreed to & Finally Passed], 1st Reg.Sess.

85th General Assembly, an Act to

Repeal Section 573.010, R.S.Mo.Supp.1988, relating to

pornography, & to enact in lieu thereof three new sections

relating to the same subject, with penalty provisions, & who

object to the suppression of constitutionally protected

expression by that Act, Appellees, v. William L. WEBSTER, Attorney General, State of Missouri;

Richard Callahan, Prosecuting Attorney for Cole County in

his official capacity & as a representative of the class of

all persons empowered to enforce the Act referred to above,

Appellants.

No. 91-2797WM.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1992.

Decided July 1, 1992.

Robert L. Presson, Asst. Atty. Gen., Jefferson City, Mo., argued (Michael L. Boicourt, appeared on the brief), for appellants.

James P. Mercurio, Washington, D.C., argued (Charles B. Ruttenberg and David L. Kelleher, Washington, D.C., and William T. Smith, III and Brian D. Williams, Kansas City, Mo., appeared on the brief), for appellees.

Before FAGG and BOWMAN, Circuit Judges, and WOODS, ^* District Judge.

FAGG, Circuit Judge.

This case presents a pre-enforcement challenge to the constitutionality of a Missouri statute that restricts the rental or sale of videocassettes or other video reproduction devices (collectively videos) depicting any type of violence in a defined way. The statute prohibits the rental or sale of these videos to minors and requires video dealers to display or maintain the videos in a separate area within their stores. The statute's challengers represent three groups: associations whose members rent or sell videos to the public; the Motion Picture Association of America, Inc. (MPAA), whose members include producers and distributors of films that are eventually released on videos; and owners and operators of two Missouri video retail stores, on behalf of a class of all retailers and distributors of videos in Missouri (collectively appellees). The appellants are the Missouri Attorney General, a county prosecuting attorney, and all others empowered to enforce the statute (collectively Missouri). The district court declared the statute unconstitutional on its face and permanently enjoined the statute's enforcement. Video Software Dealers Ass'n v. Webster, 773 F.Supp. 1275, 1283 (W.D.Mo.1991). Missouri appeals and we affirm.

The challenged part of the statute provides:

1. Video cassettes or other video reproduction devices, or the jackets, cases or coverings of such video reproduction devices shall be displayed or maintained in a separate area ... if:

(1) Taken as a whole and applying contemporary community standards, the average person would find that it has a tendency to cater or appeal to morbid interests in violence for persons under the age of seventeen; and

(2) It depicts violence in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for persons under the age of seventeen; and

(3) Taken as a whole, it lacks serious literary, artistic, political, or scientific value for persons under the age of seventeen.

2. Any video cassettes or other video reproduction devices meeting the description in subsection 1 of this section shall not be rented or sold to a person under the age of seventeen years.

3. Any violation of the provisions of subsection 1 or 2 of this section shall be punishable as an infraction....

Mo.Rev.Stat. § 573.090 (Supp.1991) (emphasis added). Under Missouri law, an infraction is not a crime, Mo.Rev.Stat. § 556.021.2 (1986), but a person convicted of an infraction may be fined $200, id. § 560.016.1(4).

At the outset, we observe it is unclear what type of videos the statute targets. The statute contains no definition of "violence" specifying the violent acts to which the statute's three-part test applies. No explanation of purpose accompanies the statute. There is no legislative history. In an article written after the violent video bill's passage, the sponsoring state representative wrote that the bill was designed to cover movies containing " 'graphic sexual torture, bondage, rape, cannibalism, human brutality and mutilation.' " Kenneth D. Rozell, Missouri Statute Attacks "Violent" Videos: Are First Amendment Rights in Danger?, 10 Loy.Ent.L.J. 655, 666 (1990) (quoting Slasher Video Law Draws Contrasting Reviews, The Statesman, July 1989, at 6).

In its brief, Missouri inconsistently identifies the targeted videos. In sharp contrast to the statute's nonspecific language, Missouri first asserts the statute targets "slasher" videos, which Missouri describes as "blood and gore movies" displaying "the most bestial and graphic acts of violence imaginable" such as "excessive scenes of murder, rape, sadomasochistic sex, autopsies, mutilations, satanism, and assorted perversions." Missouri then more broadly asserts the statute is aimed at "graphically violent videos." Missouri later asserts the statute targets "all kinds of violence that exhibit [the statutory] characteristics."

The district court concluded the challenged part of the violent video statute is unconstitutional for three alternative reasons: it is not narrowly tailored to promote a compelling state interest, 773 F.Supp. at 1277-80, it is vague, id. at 1280-81, and it imposes strict liability, id. at 1281-82.

First, we agree with the district court that the statute is not narrowly tailored to promote a compelling state interest. At oral argument, Missouri conceded the First Amendment "generally" protects videos depicting violent conduct. See Winters v. New York, 333 U.S. 507, 508, 510, 68 S.Ct. 665, 666, 667, 92 L.Ed. 840 (1948) (First Amendment protects pictures and stories of "deeds of bloodshed, lust or crime"); see also Sovereign News Co. v. Falke, 448 F.Supp. 306, 394 (N.D.Ohio 1977) ("[m]aterial limited to forms of violence is ... given the highest degree of [First Amendment] protection") (later history omitted); American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 330 (7th Cir.1985) (violence on television is protected speech). In its brief, however, Missouri contends the videos are "obscene" for children and, thus, the statute need only be rationally related to the objective of safeguarding minors from harm. See Ginsberg v. New York, 390 U.S. 629, 637, 643, 88 S.Ct. 1274, 1279, 1282, 20 L.Ed.2d 195 (1968) (applying rational relation test to statute prohibiting sale to minors of "sex material" deemed obscene for minors).

We agree with Missouri that the First Amendment does not protect obscenity. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957); Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973) (providing current definition of obscenity). We also agree with Missouri that expression which is not obscene for adults may be obscene for children if the expression bears certain indicia of obscenity when examined from a minor's point of view. Ginsberg, 390 U.S. at 636-37, 88 S.Ct. at 1278-79. Obscenity, however, encompasses only expression that "depict[s] or describe[s] sexual conduct." Miller, 413 U.S. at 24, 93 S.Ct. at 2614-15; see Roth, 354 U.S. at 487, 77 S.Ct. at 1310; Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 n. 10, 95 S.Ct. 2268, 2275 n. 10, 45 L.Ed.2d 125 (1975) (expression must be erotic to be obscene). Material that contains violence but not depictions or descriptions of sexual conduct cannot be obscene. Falke, 448 F.Supp. at 394. Thus, videos depicting only violence do not fall within the legal definition of obscenity for either minors or adults.

Missouri, however, asserts the statute is a constitutional exercise of its power to protect children. We disagree. Because states have an interest in the well-being of their youth, the states' power to regulate communicative materials available to children is somewhat broader than their power to regulate materials available to adults. Erznoznik, 422 U.S. at 212, 214 n. 11, 95 S.Ct. at 2274, 2275 n. 11. "Nevertheless, minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." Id. at 212-13, 95 S.Ct. at 2274 (citation omitted); see id. at 214 n. 11, 95 S.Ct. at 2275 n. 11. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.

Id. at 213-14, 95 S.Ct. at 2275 (emphasis added) (footnote omitted). In this case, we need not decide whether states can legitimately proscribe dissemination of material depicting violence to minors because Missouri's statute cannot survive strict scrutiny. See Thomas G. Krattenmaker & L.A. Powe, Jr., Televised Violence: First Amendment Principles and Social Science Theory, 64 Va.L.Rev. 1123, 1255-57 (1978); Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F.2d 1297, 1302 (7th Cir.1973).

Missouri...