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

Filing 15

Declaration of Christopher Finan. Filed by all plaintiffs. (eo)

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

Doc. 15

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, O R 9 7 2 0 4 Telephone: (503) 2 2 4 - 3 3 8 0 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: [phone] A t t o r n e y s f o r Plaintiffs

U N I T E D STATES D I S T R I C T C O U R T DISTRICT OF OREGON

P O W E l l ' S BOOKS, INC., e t aI., Plaintiffs,

Civil No.

CV .'0-8- 0501-110 -

DECLARATION OF CHRISTOPHER FINAN

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

Dockets.Justia.com

DECLARATION OF CHRISTOPHER FINAN

Christopher Finan declares under penalties o f pe~ury: Background 1. I am the President o f the American Booksellers Foundation for Free

Expression ("ABFFE"), a plaintiff in this action. I submit this affidavit on behalf o f ABFFE in support o f plaintiffs' motion for a preliminary injunction to enjoin the State from enforcing ORS 167.051 to 167.057 (collectively referred to as the "Statute"), a censorship law which is unconstitutional.

2.

ABFFE is located in New York, New York, and is affiliated with the

American Booksellers Association ("ABA"), the leading association o f general interest bookstores in the United States, with approximately 1,700 bookstore members who do business in 1,900 locations. 3. ABFFE was formed in February 1990 to combat escalating threats to the

First Amendment freedoms o f booksellers, publishers, librarians, and other distributors o f books, magazines, records, films, and videos. The purpose o f ABFFE is to inform and educate booksellers, other members o f the book industry, and the public about the dangers o f censorship, as well as to promote and protect the free expression o f ideas, particularly in the choice o f reading materials. 4. ABFFE has traditionally been a strong supporter o f the First Amendment

and has been at the forefront o f insuring public access to information. Since its inception, ABFFE has been an active champion o f First Amendment rights through its support o f the National Endowment for the Arts and the Salmon Rushdie Defense

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Committee USA, its service as amici in a number o f Supreme Court cases involving First Amendment issues, its distribution o f educational materials on current First Amendment issues, its production and distribution o f materials to celebrate Banned Books Week each year, and various other efforts.

5.

Many ABFFE members are bookstores and booksellers, approximately 36

o f which are located in the state o f Oregon, including, for example, co-plaintiff Powell's Books Inc. ABFFE's members are not "adult bookstores."

F e a r O f P r o s e c u t i o n U n d e r t h e Statute

6.

ABFFE and its Oregon member bookstores and booksellers (hereinafter,

"ABFFE's Oregon members") fear that they may be at risk o f criminal prosecution under the Statute for permitting minors to access o r purchase constitutionally protected material which could be deemed "sexually explicit" o r to appeal to a person's "sexual desires" under the meaning o f the Statute. ABFFE's Oregon members, however, do not k n o w h o w to d e t e r m i n e w h a t b o o k s m a y c r o s s t h e v a g u e l i n e s e s t a b l i s h e d u n d e r the Statute. 7. Under the Statute, it is a crime to furnish "sexually explicit material" to

anyone under the age o f 13 i f 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." D R S 167.054. Such material includes visual i m a g e s - including paintings and drawings -- o f masturbation, intercourse o r genital/oral/anal contact between people or animals. "[F]urnish" is defined broadly, including "to sell, give, rent, loan o r otherwise provide." See D R S 167.051.
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8.

There are two exceptions under D R S 167.054. First, certain persons,

including employees o f museums, schools, or public libraries, are not liable. ABFFE's Oregon members do not fall into this exception. Second, under the Statute, ABFFE's Oregon members would not be liable i f the sexually explicit portions o f the material furnished, o r permitted to be viewed, "form merely an incidental part o f an otherwise nonoffending whole and serve some purpose other than titillation." The Statute, however, does not define the terms contained in this exception. Moreover, the terms are not readily understandable and are vague. 9. Under the Statute, it also is a crime o f "luring" i f a person disseminates to

anyone under the age o f 18 a "visual representation o r explicit verbal description or narrative account o f sexual conduct" for the purpose o f "arousing o r satisfying the sexual desires o f the person o r the minor . . . " ORS 167,057. Based on the plain language o f the Statute, I understand this to include both textual descriptions and visual depictions, I also believe that the phrase "arousing o r satisfying the sexual desires," which is undefined under the Statute, is vague. In addition, this section contains the same undefined and vague "incidental part" exception. 10. A n y general bookstore, including ABFFE's Oregon members, is likely to

contain hundreds o r even thousands of books o r other materials with sexually-related narrative or pictorial content, including, in some instances, nudity, that could be c o n s i d e r e d " s e x u a l l y explicit" o r " v i s u a l r e p r e s e n t a t i o n [ s ] or e x p l i c i t v e r b a l d e s c r i p t i o n [ s ] or narrative account[s] o f sexual conduct" that may appeal to a person's "sexual desires." Such literary greats as Nabokov's Lolita, William Faulkner's Sanctuary, and Philip Roth's Portnoy's Complaint come to mind. In addition, ABFFE's Oregon

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members sell books relating t o a variety o f sexual education and health topics, including the prevention of, and risks associated with, STDs and AIDS and teenage pregnancy. Such books are appropriately directed to minors as well as to adults. Books addressing issues o f homosexuality or sexuality in general also are sold at many bookstores and again, may be directed t o minors as well as to adults as a means o f providing desired information and education, e.g. Robie H. Harris' It's Perfectly N o r m a l and It's So
A m a z i n g (Candlewick Press). ABFFE's Oregon members f e a r prosecution under the

Statute i f they continue t o sell these and other mainstream materials containing sexually-related narrative o r pictorial content in the same manner that some have done f o r decades.

11.

F o r e x a m p l e , u n d e r t h e S t a t u t e , A B F E E ' s O r e g o n m e m b e r s risk c r i m i n a l

prosecution for furnishing the constitutionally protected materials described above to persons "under 13 years o f age." ORS 167.054. It would be difficult, i f not impossible, to "card" o r determine whether a child is under 13 years o f age. In addition, under ORS 167.057, furnishing a 17 year-old minor with such material is a crime i f furnished for the purpose o f satisfying t h e sexual desire o f the 17-year old. As discussed above, A B F F E ' s O r e g o n m e m b e r s sell b o o k s o r o t h e r 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 content that may be sexually arousing, depending on the individual. Some o f these materials may even be directed t o minors. While it o f course is not a crime for a 17 year-old t o satisfy his or her sexual desire b y reading such a book, or t o become sexually aroused while reading such a book, it is a felony f o r a bookstore to furnish that book.

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12.

Even i f ABFFE's Oregon members had the time to review each book

individually before they shelved it to engage in the sorts o f subjective acts required under the Statute - which they do not -- determining which books fall under the Statute's proscriptions is not possible and would lead to overinclusive and unconstitutional self-censorship. Given the vagueness and breadth o f the Statute, to ensure full compliance, ABFFE's Oregon members likely will be forced to stop selling materials with sexually-related content, physically segregate such materials in the store or exclude minors from the store altogether. All o f these options impermissibly infringe on a bookseller's constitutional rights. Moreover, the right o f their patrons -- adults and minors alike -- to access and purchase such materials will be seriously infringed.

Conclusion

13.

For all the reasons stated above, ABFFE's Oregon members fear

prosecution under the Statute. I f the Statute is not held unconstitutional, its members will be forced either to self-censor materials available in their stores to a great degree o r to risk criminal liability. (I understand that ABFFE's members have not self-censored to date because they believe the law is unconstitutional.) , Dated: April It;, 2 0 0 8

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