Powell's Books, Inc. v. Kroger

(formerly Powell's Books, Inc. v. Myers) 622 F.3d 1202 (9th Cir., 2010)

  1. Plaintiffs' Press Release on the Ninth Circuit's Ruling
  2. Oregon's Petition for Panel Rehearing with Suggestion for Rehearing En Banc
  3. Ninth Circuit Decision
  4. Oregon's Reply Brief in Support of Certifying Questions to Oregon Supreme Court
  5. Media Coalition's Response to Motion to Certify Question to Oregon Supreme Court
  6. ACLU's Response to Motion to Certify Question to Oregon Supreme Court
  7. Plaintiff's Reply Brief to the Ninth Circuit
  8. Media Coalition's Brief in the Ninth Circuit
  9. ACLU's Opening Brief in the Ninth Circuit
  10. Amicus Brief from the Thomas Jefferson Center for the Protection of Free Expression
  11. Oregon's Brief in the Ninth Circuit
  12. Memo in Support of Preliminary Injunction
  13. Motion for Preliminary Injunction
  14. Plaintiff's Complaint
  15. Oregon ACLU's Notice of Appeal to Ninth Circuit

This case concerned a law that did not use the Miller/Ginsberg definition of "harmful to minors." Instead, it prohibited the distribution of sexually explicit materials to minors under 13 under any circumstances and to older minors (those under 18) for the purposes of arousing or satisfying sexual desires. The Ninth Circuit ruled the law unconstitutional on September 20, 2010 and denied the state's appeal.

History: The case was a challenge to a law that would have made illegal for minors sexually explicit material without adhering to the Miller/Ginsberg three-pronged test. The law barred disseminating to a minor under 13 "sexually explicit material," defined as visual images of sexual conduct. The law also made it a crime of "luring" by disseminating visual material showing sexual conduct or a narrative account of sexual conduct to anyone under 18 with the intent of sexually arousing or satisfying the provider or recipient of the material. Neither provision provided for a value prong. The law went into effect January 1, 2008 and was struck down by the Ninth Circuit on September 20, 2010.

Plaintiffs were the Association of American Publishers, American Booksellers Foundation for Free Expression, Comic Book Legal Defense Fund, Freedom to Read Foundation, comic book publisher Dark Horse Comics, Powell's Books, Old Multnomah Bookstore, Annie Bloom's Books, Colette's: Good Food and Hungry Minds, Paulina Springs Books, St. John's Booksellers, 23rd Avenue Books, librarian Candace Morgan, Planned Parenthood of the Columbia, Cascade AIDS Project, and the Oregon Civil Liberties Union.

History: Plaintiffs filed a complaint and motion for preliminary injunction in U.S. District Court in Portland, OR, on April 25, 2008. On December 12, 2008, the District Court ruled that "as interpreted," the statute was constitutional as a permissible limitation on speech and that it was not unconstitutionally vague.  On January 6, 2009, final judgement was entered dismissing the complaint.

On Febrary 3 and 4th, 2009, plaintiffs filed notices of appeal to the United States Court of Appeals for the Ninth Circuit.  Because the District Court's decision has a different impact on booksellers than upon providers of health and sex information, two notices of appeal were filed; one on behalf of the bookstores and Media Coalition plaintiffs, and one on behalf of Planned Parenthood, Cascades AIDS Project, Candace Morgan and the Oregon ACLU.

Plaintiffs' opening brief was due July 30th. The state's response was due on August 29th, and plaintiffs' reply was due on September 12th.  The attorney general submitted the state's brief on September 25, 2009.  A hearing on the merits occurred October 3rd, 2009.

On October 8, 2009 Media Coalition filed a reply brief in the Ninth Circuit Court of Appeals.  

Oral argument in Powell's v. Kroger was heard on June 8, 2010. The Ninth Circuit made available an audio recording of the hearing on its website the following day. In late June and early July of 2010, Media Coalition and Oregon filed briefs regarding a motion to certify questions to the Oregon Supreme Court.

Listen to an audio recording of the proceedings at the Ninth Circuit Court of Appeals' website

On September 20, 2010, the Ninth Circuit Court of Appeals ruled that the statute at issue was unconstitutionally overbroad.

Read the Plaintiffs' Press Release
 
Read the Ninth Circuit's Decision

On December 15, the Ninth Circuit Court of Appeals denied the state's petition for panel rehearing with suggestion for rehearing en banc. Oregon filed the petition with the Ninth Circuit on November 8.

updated 12/16/10