Powell’s Books, Inc. v. Kroger

622 F.3d 1202 (9th Cir. 2010), rev’g sub nom. Powell’s Books v. Myers, 599 F. Supp. 2d 1226 (D. Or. 2008)

Previous case names:
Powell’s Books v. Myers

In September 2010, the 9th Circuit Court of Appeals ruled that Oregon statutes barring the dissemination of “sexually explicit” material to minors under 13 and of materials that depict or describe “sexual conduct” to minors under 18 are unconstitutional, overturning a U.S. District Court decision. The State of Oregon filed a petition for a rehearing en banc, which was denied.


Oregon bill signed into law
On July 31, 2007, Governor Ted Kulongoski signed Oregon House Bill 2843 [17] into law, which included two sections: Section 054 makes it a crime to provide “sexually explicit” visual images to minors under the age of 13, and Section 057 makes it a crime to provide images or verbal descriptions of “sexual conduct” to minors under the age of 18. The sections go beyond the material deemed illegal for minors by the United States Supreme Court in Miller v. California and modified in Ginsberg v. New York.

Lawsuit filed in U.S. District Court
On April 25, 2008, Media Coalition filed a lawsuit 16] in the U.S. District Court for the District of Oregon on behalf of some of its members, as well as Oregon booksellers, publishers and organizations, arguing that the statutes criminalize speech protected by the First Amendment. Media Coalition also filed a motion for preliminary injunction [15]. The case was originally filed as Powell’s Books v. Myers.

On December 12, 2008, U.S. District Court Judge Michael Mosman found [10] that the plaintiffs had standing to bring the suit but denied the plaintiffs’ motion for an injunction and a declaration that the statutes were unconstitutional. The judge ruled that, “as interpreted,” the statute was constitutional as a permissible limitation of speech and that it was not unconstitutionally vague. The Court also held that a “harmful to minors” law does not have to contain the Miller/Ginsberg test, so long as it functionally reaches the same result. The Court found that as the statutes “would be applied by prosecutors, judges and juries,” they are not substantially overbroad.

Appeal in the Ninth Circuit
The plaintiffs filed an appeal. (The case is now Powell’s Books v. Kroger, after John Kroger was elected to succeed Hardy Myers as Attorney General of Oregon.) Because the District Court’s decision dealt separately with the claims of the booksellers and the claims of the health education providers, the plaintiffs filed two separate appeals. Media Coalition members, booksellers and publishers filed one appeal [8], and Planned Parenthood, Cascades AIDS Project, the ACLU of Oregon and Candace Morgan filed the other [9]. The 9th Circuit Court of Appeals determined that the two groups of plaintiffs could file separate briefs, but that the appeals would be heard by the same panel.

On June 8, 2010, a three-judge panel of the 9th Circuit heard argument in Portland, Oregon. Several weeks after the argument, the State of Oregon filed a motion to certify questions to the Oregon Supreme Court [6]. Plaintiffs filed a response [5], stating that the 9th Circuit should decide the case, without certifying the questions to the Oregon Supreme Court.

On September 20, 2010, without certifying any questions, the 9th Circuit held [3] that both sections of the Oregon law were unconstitutional. The Court agreed with the position of the plaintiffs that “the statutes are facially overbroad and criminalize a substantial amount of constitutionally protected speech.” The 9th Circuit held:

“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. Repeated reliance on the legislature’s efforts to combat hardcore pornography cannot change the text of the statute. The legislative goal does not match the text of the statutes; the statutes’ undoing is their overbreadth. 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.”

The State of Oregon filed a petition for rehearing en banc [2], arguing that the panel decision was in error because the federal court must certify questions to the Oregon Supreme Court as to the meaning of the challenged statutes. Rehearing was denied [1].

Powell’s Books, American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, Comic Book Legal Defense Fund, Annie Bloom’s Books, Dark Horse Comics, Colette’s: Good Food + Hungry Minds, Paulina Springs Books, St. Johns Booksellers, Twenty-Third Avenue Books, Planned Parenthood of the Columbia/Willamette, Cascade AIDS Project, American Civil Liberties Union of Oregon, and Candace Morgan