Free Expression Victory in Oregon

On Monday, September 20, the U.S. Court of Appeals for the Ninth Circuit held that two Oregon statutes that criminalize the distribution of sex education and other non-obscene materials to minors are unconstitutional.

The State of Oregon had argued that the statutes applied only to “hardcore pornography,” but the court found that the statutes also applied to titles commonly sold at general bookstores, such as The Joy of Sex, Kentaro Miura’s manga Berserk, Judy Blume’s Forever, and Margaret Atwood’s A Handmaid’s Tale. The plaintiffs, who included area booksellers, the American Booksellers Foundation for Free Expression, and others, did not challenge Oregon’s existing law making it a crime to contact a minor with the intent of having sexual contact.

“This is an important victory permitting readers − both younger and older − to obtain what they are constitutionally entitled to read,” said Michael Powell of Powell’s Books, a plaintiff in the case. “It is also a victory for booksellers who do not want to ask 13-year-olds for identification or risk going to jail for selling a Judy Blume book.”

“We are delighted that the Ninth Circuit recognized the threat this law posed to free speech. We are also proud that no fewer than five bookstores stepped forward to challenge the law,” said ABFFE President Chris Finan. “It is never easy to stand up for the First Amendment, particularly when the law in question purports to protect children.”

In addition to Powell’s, booksellers challenging the statues were Annie Bloom's Books and St. Johns Booksellers, both in Portland; Paulina Springs Books, which has stores in Sisters and Redmond, and Colette's Good Food + Hungry Minds in North Bend.

Media Coalition members who were plaintiffs include the Association of American Publishers, the Freedom to Read Foundation, and the Comic Book Legal Defense Fund. Other Oregon plaintiffs are Planned Parenthood of the Columbia/Willamette, Inc., Cascade AIDS Project, the American Civil Liberties Union of Oregon, and Candace Morgan.

The plaintiffs first challenged the statutes in April 2008, because they were vague and lacked procedural safeguards for material that is protected by the First Amendment. However, in December 2008, a U.S. District Court ruled that the statutes and other provisions of state law provided protections that are functionally equivalent to the Supreme Court test. In February 2009, the plaintiffs appealed the decision.

Plaintiffs were represented by Michael A. Bamberger of Sonnenschein Nath & Rosenthal LLP, New York, general counsel to Media Coalition, and P.K. Runkles-Pearson, a cooperating attorney for the ACLU of Oregon.