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

Filing 13

Declaration of Judith Krug. Filed by all plaintiffs. (eo)

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Powell's Books, Inc. et al v. Myers et al Doc. 13 P.K. Runkles-Pearson, OSS No. 061911 pkrunkles-pearson@stoel.com S T O E l RIVES l l P 900 S W Fifth Avenue, Suite 2600 Portland, OR 97204 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 Michael A. Bamberger mbamberger@sonnenschein.com Rachel G. Balaban rbalaban@sonnenschein.com SONNENSCHEIN NATH & ROSENTHAL l l P 1221 Avenue o f the Americas, 24th Floor New York, NY 10020 Telephone: (212) 768-6700 Facsimile: (212) 768-6800 A t t o r n e y s f o r Plaintiffs U N I T E D STATES DISTRICT C O U R T DISTRICT OF OREGON P O W E l l ' S BOOKS, INC., e t aI., Plaintiffs, v. HARDY MYERS, in his official capacity as A T I O R N E Y GENERAL OF THE STATE OF OREGON, e t aI., Defendants. Civil No. CV JOB - 050 1 - MO DECLARATION"OF JUDITH KRUG Dockets.Justia.com DECLARATION OF JUDITH KRUG pe~ury: J u d i t h Krug d e c l a r e s u n d e r p e n a l t i e s o f Background 1. I am the Executive Director o f the Freedom to Read Foundation (FTRF), a s i s t e r o r g a n i z a t i o n o f t h e A m e r i c a n L i b r a r y A s s o c i a t i o n ( A L A ) , o n e o f the p l a i n t i f f s herein. I also am the Director f o r the Office f o r Intellectual Freedom o f the ALA. I am professionally trained as a librarian and f o r many years taught the intellectual freedom and censorship course at the Graduate School o f Library and Information Science o f Simmons College, Boston, Massachusetts. I submit this affidavit on behalf o f FTRF in s u p p o r t o f p l a i n t i f f s ' m o t i o n f o r a p r e l i m i n a r y i n j u n c t i o n t o e n j o i n the S t a t e f r o m e n f o r c i n g ORS 167.051 to 167.057 (collectively referred to as the "Statute"), a censorship law that is unconstitutional. 2. The FTRF was established by the A L A in 1969 to promote and defend the First Amendment right to free expression, including the right to read and listen to the ideas o f others. The FTRF works with the ALA to support and foster libraries -- both public and private -- as institutions in which First Amendment freedoms are fulfilled, and to support the right o f libraries to include in their collections and make available any work which t h e y m a y legally acquire. T h e FTRF gives both financial and legal support to libraries and librarians across the country, including Oregon libraries and librarians. The FTRF was founded in part to support and defend librarians whose positions are jeopardized because o f their defense o f the First Amendment. The FTRF is headquartered at the offices o f the American Library Association, 50 E. Huron, Chicago, IL 60611. FTRF members include librarians, library patrons, public libraries, private - 2- libraries, academic libraries, private organizations and individuals committed to promoting the freedom to read on behalf o f all individuals. 3. Among many o f its other regular activities, the FTRF has annually supported "Banned Books Week" (BBW) since its inception in 1982. BBW brings to the attention o f the public that its First Amendment rights must be exercised t o remain strong. BSW does this by publishing information about the books that have been challenged o r banned during the preceding year so the public is aware o f the continuing threats to First Amendment rights. This list contains many o f the 20th and 21 st centuries' most important works o f American literature, including, for example, Phillip Roth's Portnoy's Complaint, Nabokov's Lolita, and J.D. Salinger's The Catcher in the Rye, all o f which contain sexual narrative. The list celebrates the freedom to choose what one wants t o read and the freedom to express one's opinion, even i f that opinion might be considered unorthodox o r unpopular. It stresses the importance o f ensuring the availability o f all points o f view, including those that are unorthodox o r unpopular, to all who choose t o read them. 4. The FTRF invokes its historic role as a protector o f librarians and libraries and o u r First Amendment freedoms by contesting the Statute. FTRF sues on its own behalf, on behalf o f its members in Oregon, and on behalf o f its member libraries' patrons. Fear O f Prosecution Under the Statute 5. As I understand the Statute, FTRF and its Oregon members (collectively, "FTRF's Oregon members") can be prosecuted for permitting minors to access constitutionally protected material that could be deemed "sexually explicit" o r to appeal -3- to a person's "sexual desires" under the meaning o f the Statute. The Statute effectively makes librarians engage in censorship, which is inimical t o the philosophical basis o f t h e l i b r a r y profession. 6. Most libraries, including FTRF's Oregon members, are likely to contain hundreds o f books o r other materials with sexually-related narrative o r pictorial content, including, in some instances, nudity, that could be considered "sexually explicit" o r "visual representation[s] o r explicit verbal description[s] o r narrative account[s] o f sexual conduct" that may appeal to a person's "sexual desires." The books referenced in paragraph 3 above are j u s t a few such examples. Other examples include materials such as Forever, by J u d y Blume, Women on Top, by Nancy Friday, Changing Bodies, Changing Lives, by Ruth Bell, Our Bodies, O u r Selves, by the Boston Women's Health Collective, and Ws Perfectly Normal, by Robie Harris. These materials also are available f o r purchase in the state to individual members o f FTRF. FTRF's Oregon members fear prosecution under the Statute if they continue to provide these and other m a i n s t r e a m m a t e r i a l s c o n t a i n i n g s e x u a l l y - r e l a t e d n a r r a t i v e o r p i c t o r i a l content. 7. Under the Statute, it is a crime to furnish "sexually explicit material" to anyone under the age o f 13 if the person "intentionally furnishes a child, o r intentionally permits a child to view, sexually explicit material and the person knows that the material is sexually explicit material." DRS 167.054. "[F]urnish" is defined broadly, including "to sell, give, rent, loan or otherwise provide." See DRS 167.051. My understanding is that based on this broad and vague language, FTRF's Oregon members risk criminal p r o s e c u t i o n f o r f u r n i s h i n g t h e 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 s d e s c r i b e d above t o a person under the age o f 13. The age requirement places yet another unconstitutional - 4- overbroad nature o f t h e Statute, FTRF's Oregon members will be forced to engage in self-censorship t h a t undoubtedly will restrict library patrons' - adults and minors alike -a c c e s s to 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 s , i n c l u d i n g t h e b o o k s d e s c r i b e d a b o v e . Conclusion 11. FTRF and its Oregon m e m b e r s play an important role in ensuring t h a t the r e a d i n g p u b l i c c a n e x e r c i s e its F i r s t A m e n d m e n t r i g h t t o f r e e d o m o f i n f o r m a t i o n . F o r t h e r e a s o n s stated h e r e i n , t h e S t a t u t e p r e v e n t s t h e m f r o m e x e r c i s i n g t h i s i m p o r t a n t f u n c t i o n and by so doing, is unconstitutional. Dated: A p r i l - M . 2 0 0 8 - 6-

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