Powell's Books, Inc. et al v. Myers et al

Filing 12

Declaration of Charles Brownstein. Filed by all plaintiffs. (eo)

Powell's Books, Inc. et al v. Myers et al

Doc. 12

P.K. Runkles-Pearson, OSB No. 061911 [e-mail] S T O E l RIVES l l P 900 S W Fifth Avenue, Suite 2600 Portland, OR 97204 Telephone: [phone] Facsimile: [phone] Michael A. Bamberger [e-mail] Rachel G. Balaban [e-mail] SONNENSCHEIN NATH & ROSENTHAL l l P 1221 Avenue o f the Americas, 24th Floor New York, NY 10020 Telephone: [phone] Facsimile: ( 2 1 2 ) 7 6 8 - 6 8 0 0 A t t o r n e y s f o r Plaintiffs

UNITED S T A T E S DISTRICT C O U R T DISTRICT OF OREGON

CV '08 - 0 50 1 - fU)
P O W E l l ' S BOOKS, INC., et aI., Plaintiffs,
v.

Civil No. DECLARATION OF CHARLES BROWNSTEIN

HARDY MYERS, in his official capacity as ATTORNEY GENERAL OF THE STATE OF OREGON, e t al., Defendants.

Dockets.Justia.com

DECLARATION OF CHARLES BROWNSTEIN

Charles Brownstein declares under penalties o f perjury: Background

1.

I am the Executive Director o f the Comic Book Legal Defense Fund

("CBLDF"), a plaintiff in this action. I submit this affidavit on behalf o f CBLDF and its members in support o f plaintiffs' motion f o r a preliminary injunction to enjoin the State from enforcing ORS 167.051 t o 167.057 (collectively referred to as the "Statute"), a censorship law which is unconstitutional.

2.

CBLDF is a non-profit corporation dedicated t o defending the First

Amendment Rights o f the comic book industry. CBLDF, which has its principal place o f business in New York, NY, represents over 1,000 comic book authors, artists, retailers, distributors, publishers, librarians, and readers located in Oregon, throughout the country and the world.

3.

CBLDF was formed in 1986 t o assert and protect the First Amendment

rights o f authors, artists, retailers, distributors, publishers and retailers o f comic books, as the result o f a challenge to such rights in Lansing, Illinois.

4.

I have been professionally involved with comic books f o r over the past

fifteen years, in publishing, editing, writing, and marketing o f comic books. 5. Before 1933, comic strips appeared almost exclusively in newspapers and

comic books as w e know them today did not exist. In 1933, "Funnies on Parade" became the first comic book t o be published and marketed as such. In 1938, comic

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books t o o k another major step with Action Comics #1 featuring Superman. The comic book medium continued t o evolve in subsequent years, encompassing a wide variety o f genres and subject matters. Serial pamphlets served as the dominant fonnat f o r comics until the 1980s when the graphic novel format, a collection o f comic book material r e s e m b l i n g p a p e r b a c k a n d h a r d c o v e r t r a d e books, w a s f i r s t p o p u l a r i z e d . T o d a y g r a p h i c novels are the m o s t popular format o f delivery f o r comic book stories.

6.

While comic books are often thought o f in the context o f material directed

primarily a t children, they have often represented thoughtful comments on culture. In recent years the comic book industry has matured, developing in various genres, including young adult fiction, teenage fiction, and award winning literary fiction addressed t o older audiences, often picturing nudity, other sexually explicit images and sexually frank plots. T h e maturity was first recognized when the Maus, a holocaust memoir presented as comic book narrative created by A r t Speigelman, was awarded a Pulitzer Prize in 1992. Today most comic books are collected in the perennial ,graphic n o v e l format.

F e a r O f Prosecution U n d e r t h e Statute

7.

CBLDF and its members fear that they may be a t risk o f criminal

prosecution under the Statute f o r distributing o r permitting minors to view o r access c o n s t i t u t i o n a l l y - p r o t e c t e d m a t e r i a l which c o u l d b e d e e m e d " s e x u a l l y e x p l i c i t " o r t o appea"' t o a person's "sexual desires" under the meaning o f the Statute. They, however, d o not k n o w h o w t o d e t e r m i n e w h a t c o m i c books m a y cross t h e vague lines e s t a b l i s h e d under the Statute.

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undefined under the Statute, is vague. In addition, this section contains the same undefined and vague "incidental part" exception.

11.

My understanding is that CBLDF's members risk criminal prosecution f o r

furnishing constitutionallv-protected comic books t o persons "under 13 years o f age" under D R S 167.054. It would be difficult, i f n o t impossible, f o r CBLDF's members to "card" o r determine whether a child is under 13 years o f age at o u r bookstores. Like movies, books, and magazines, many comic books contain sexually related narrative o r pictorial c o n t e n t t h a t m i g h t a p p e a l t o a m i n o r ' s " s e x u a l d e s i r e . " For e x a m p l e ,
Watchmen,

a seminal graphic novel by Alan Moore and Dave Gibbons, uses the idiom

o f superhero comics to create a social commentary on Cold W a r paranoia. The book includes a character named Dr. Manhattan who represents nuclear power and is depicted in the nude. There also are scenes d e p i c t i n g sexuality. Similarly, A l l S t a r
Batman & Robin by Frank Miller and Jim Lee depicts sexual situations. There also are

a broad v a r i e t y o f m a n g a , a t r a d e t e r m f o r p o c k e t - b o o k s i z e d t r a n s l a t i o n s o f J a p a n e s e comics, t h a t d e p i c t sexuality.

12.

Under D R S 167.057, furnishing a 17 year-old minor with such material is a

crime i f furnished f o r the purpose o f satisfying the sexual desire o f the 17-year old. A s discussed above, CBLDF's members sell comic books containing sexually~related content that may be sexually arousing, depending on the individual. Under this section, they apparently would be committing a felony i f a 17 year-old purchased a comic b o o k to satisfy his o r h e r sexual desire o r to become sexually aroused while reading such a book.

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13.

M o r e o v e r , t o e n s u r e c o m p l i a n c e w i t h t h e Act, C B L D F ' s m e m b e r s m a y b e

forced to physically segregate all such possible materials in the store o r exclude minors from the store -- a very large percentage o f their customers. In addition, having an "adult section" would change the nature o f t h e i r stores, in light o f the number o f titles that would be placed there by a cautious retailer. This also likely would result in e c o n o m i c l o s s e s f r o m the d e c l i n e o f s a l e s o f c o m i c b o o k s a t C B L D F ' s m e m b e r s .

Conclusion
14. For all the reasons stated above, CBLDF's members fear prosecution

under the Statute. I f the Statute is n o t enjoined, they will be forced either t o self-censor materials available in their stores to a great degree o r risk criminal liability. (I understand t h a t C B L D F ' s m e m b e r s h a v e n o t s e l f - c e n s o r e d t o d a t e b e c a u s e t h e y believe the law is unconstitutional.)

CHARLES BROWNSTEIN

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