The United States Court of Appeals for the Ninth Circuit this week found two Oregon statutes ostensibly aimed at preventing the sexual abuse of children to be unconstitutional and in violation of the First Amendment. The court found that a “furnishing” statute (Oregon Revised Statutes § 167.054, or “section 054”), which made it a crime to provide children under the age of 13 with "sexually explicit" material, and a “luring” statute (§ 167.057), which criminalized providing minors under the age of 18 with "visual, verbal, or narrative descriptions of sexual conduct," to be overly broad and potentially in violation of free speech protections.
While the state of Oregon had argued that the statutes applied only to “hardcore pornography,” the Ninth Circuit found that, as written, the laws could be applied to much more, including books like Judy Blume’s Forever and Margaret Atwood’s A Handmaid’s Tale. "Although the state argues that the statutes may be construed to narrowly focus on the sharing of hardcore pornography or material that is obscene to minors alone, its position is contradicted by the statutory text," reads the court decision. "In their current form, the statutes sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume. Despite the legislature’s laudable goals, we cannot rewrite the statute to conform to constitutional limitations."
Michael Powell of plaintiff Powell’s Books said the ruling was an important victory for readers, and for booksellers "who do not want to ask 13-year-olds for identification or risk going to jail for selling a Judy Blume book."
The decision was issued in a lawsuit brought by Powell’s Books Inc.; Annie Bloom’s Books; Dark Horse Comics Inc.; Colette’s Good Food + Hungry Minds LLC; Pauline Springs Books; St. John’s Booksellers LLC; and supported by the American Booksellers Foundation for Free Expression; Association of American Publishers Inc.; Freedom to Read Foundation Inc.; Comic Book Legal Defense Fund; Candace Morgan, Planned Parenthood of the Columbia/Willamette Inc.; Cascade AIDS Project; and the ACLU of Oregon.
The ruling is the second major battle this year for booksellers and free speech advocates challenging overly broad statutes designed to curb access by minors to obscene material. In July, a coalition of organizations, including publishers and booksellers, filed suit to block a Massachusetts law that would ban certain works deemed to be “harmful to minors” from the Internet. Signed into law in April, the Massachusetts law would make anyone who operates a Web site or communicates through an electronic listserv criminally liable for nudity or sexually related material, if the material is found to be “harmful to minors.”