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

Filing 14

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

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

Doc. 14

P.K. Runkles-Pearson, OSB No. 061911 [e-mail] STOEL RIVES LLP 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 LLP 1221 Avenue o f the Americas, 24th Floor New York, NY 10020 Telephone: [phone] Facsimile: [phone] 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

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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.

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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.- ~

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