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

Filing 14

Declaration of Allan R. Adler. Filed by all plaintiffs. (eo)

Download PDF
Powell's Books, Inc. et al v. Myers et al Doc. 14 P.K. Runkles-Pearson, OSB No. 061911 pkrunkles-pearson@stoel.com STOEL RIVES LLP 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 LLP 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 UNITED STATES DISTRICT C O U R T DISTRICT OF OREGON POWELL'S BOOKS, INC., et aI., Plaintiffs, Civil No. CV '08- 0 501. - rHl DECLARATION O F ALLAN R. ADLER v. HARDY MYERS, in his official capacity as ATTORNEY GENERAL OF T H E STATE OF OREGON, e t aI., Defendants. Dockets.Justia.com DECLARATION O F A L L A N R. A D L E R Allan R. Adler declares under penalties of perjury: Background 1. I am Vice President for Legal and Government Affairs of the Association o f American Publishers, Inc. (AAP), one o f the plaintiffs in this action. I submit this declaration on behalf of AAP in support o f plaintiffs' motion for a preliminary injunction to enjoin the State from enforcing D R S 167.051 t o 167.057 (collectively referred to a s the "Statute") as it is an unconstitutional speech restriction. 2. AAP, a not-far-profit New York corporation with offices in New York and Washington, is the national association o f the U.S. book publishing industry. AAP's members include most o f the m a j o r commercial book publishers in the United States, a s well as smaller and non-profit publishers, university presses, and scholarly associations. AAP members publish hardcover and paperback books in every field and a range of e d u c a t i o n a l m a t e r i a l s f o r t h e e l e m e n t a r y , secondary, p o s t - s e c o n d a r y , a n d p r o f e s s i o n a l markets. 3. AAP represents an industry whose very existence depends on the free exercise of the free-speech rights guaranteed by the First Amendment. T h e business o f AAP's members is primarily based on print publishing, but AAP members make a wide range of material available online, including book excerpts. 4. S o m e o f t h e c o n t e n t p u b l i s h e d b y A A P m e m b e r s c o n t a i n s n u d i t y o r sexual conduct. In fact, many of the efforts t o ban books in various communities have been directed at books published by AAP's members. If the Statute is not enjoined, AAP -2- material with sexual content to a person under the age of 13. T h e age requirement places yet another unconstitutional burden on AAP members. 7. T h e t w o e x e m p t i o n s u n d e r D R S 1 6 7 . 0 5 4 d o n o t a d e q u a t e l y p r o t e c t AAP members. Under this section, a person is not liable if the sexually explicit portions of the material furnished, o r permitted t o be viewed, "form merely an incidental part of an otherwise nonoffending whole and serve some purpose other than titillation." D R S 167.054. AAP members do not know h o w to determine what materials m a y fall within this vague provision. As a result, they will be forced to either self-censor in an overinclusive fashion or risk criminal prosecution. 8. Under D R S 167.057, it also is a crime of "luring" to disseminate t o anyont ! under the age o f 18 a ''visual representation or explicit verbal description o r narrative a c c o u n t o f s e x u a l c o n d u c t " f o r t h e p u r p o s e o f " a r o u s i n g o r s a t i s f y i n g t h e s e x u a l desires o f t h e person o r t h e m i n o r . . . " I b e l i e v e t h e p h r a s e "arousing o r s a t i s f y i n g t h e s e x u a l desires," which is undefined in the Statute, not only is unrelated to luring but also is vague and improperly could impose criminal liability on AAP members for providing materials, o r information relating t o such materials, so that a person under 18 may undertake acts that are entirely legal. 9. T h e Statute not only violates the rights o f AAP members but also the rights of adults and minors t o freely access constitutionally-protected materials. AAP strongly believes that there should be unrestricted access t o all First Amendmentprotected material, including that which contains sexual activity, so long as it falls outside the narrow range o f material the Supreme Court has held t o be unlawful. -4- Conclusion 10. As explained above, AAP members fear prosecution under t h e Statute. I: the Statute is not invalidated, AAP members will be forced either to self-censor materials legally published and made available to adults and minors or risk criminal liability. This undue burden on free-speech rights is unconstitutional under the First Amendment. (I understand that AAP members have not self-censored to date as a result of the Statute because they believe the law to be unconstitutional.) Q L t f i .~ 1(. Allan R. Adler CLdh.- ~ -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?