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

Filing 16

Declaration of Stephanie Griffin. Filed by all plaintiffs. (eo)

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

Doc. 16

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: (503) 2 2 0 - 2 4 8 0 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 50 1 .- 110

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

DECLARATION OF STEPHANIE GRIFFIN

Dockets.Justia.com

DECLARATION O F STEPHANIE GRIFFIN

Stephanie Griffin declares under penalties of perjury: Background 1. I am the owner o f Twenty-Third Avenue Books ("Twenty-Third Ave.") a

plaintiff in this action. I submit this affidavit on behalf of Twenty-Third Ave. in support of plaintiffs' motion for a preliminary injunction to enjoin the State from enforcing ORS 167.051 t o 167.057 (collectively referred to as the "Statute"), an unconstitutional censorship law which will apply to mainstream book stores such as Twenty-Third Ave.

2.

Twenty-Third Ave. was established in 1980 and is located in the Nob Hill

district of Northwest Portland, Oregon. We offer a wide array of books, magazines and other material for purchase t o our customers, including, for example, fiction, biographies and other non-fiction books, graphic novels and erotica, gay and lesbian studies, and books directed to children, teens and adolescents.

Fear Of Prosecution Under the Statute 3. Twenty-Third Ave. fears that it may be a t risk of criminal prosecution under

the Statute for permitting minors to access o r purchase constitutionally-protected material at our bookstores, which could be deemed "sexually explicif' or t o appeal to a person's "sexual desires" under the meaning of the Statute. Twenty-Third Ave., however, does not know how t o determine what books may cross the vague lines established under the Statute. 4. Under the Statute, it is a crime t o furnish "sexually explicit material" to

anyone under the age of 13 if the person "intentionally furnishes a child, or intentionally
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permits a child t o view, sexually explicit material and the person knows that the material is sexually explicit material." ORS 167.054. Such material includes that which contains visual images -- including paintings and drawings -- o f masturbation, intercourse or genital/oral/anal contact between people and animals. "[F]urnish" is defined broadly, including ''to sell, give, rent, loan or otherwise provide." See D R S 167.051.

5.

There are two exceptions under ORS 167.054. First, certain persons,

including employees of museums, schools, or public libraries, are not liable. TwentyThird Ave. does not fall into this exception. Second, Twenty-Third Ave. would not be liable if the sexually explicit portions of the material furnished, o r permitted to be viewed, "form merely an incidental part of an otherwise nonoffending whole and serve some purpose other than titillation." I believe this exception is vague and do not understand what specific material would fit under this exception.

6.

Under the Statute, it also is a crime if a person disseminates to anyone

under the age of 18 a "visual representation or explicit verbal description or narrative account of 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. I believe this is a very broad provision encompassing material with textual descriptions as well a s visual depictions. I also believe that the phrase "arousing or satisfying the sexual desires," which is undefined under the Statute, is vague. In addition, D R S 167.057 contains the same undefined and vague "incidental part" exception. 7. My understanding is that under ORS 167.054, Twenty-Third Ave. risks

criminal prosecution for furnishing constitutionally-protected materials to persons "under 13 years of age." While we may from time to time suggest t o a youthful customer that a -3-

desired purchase may be inappropriate, it would be difficult, if not impossible, to "card" or determine whether a child is under 13 years of age at our bookstore. Under ORS 167.057, furnishing a 17 year-old minor with such material is a crime if furnished for the purpose of satisfying the sexual desire of the 17-year old. Again, determining whether a user is 17 with any accuracy is not feasible. In addition, as set forth herein, TwentyThird Ave. sells books and other materials containing sexually-related content that may be sexually arousing, depending on the individual. Under Section 3, Twenty-Third Ave. would be committing a felony if a 17 year-old purchased a book to satisfy his or her sexual desire or to become sexually aroused while reading such a book -- an act that individual has a right to do. 8. Twenty-Third Ave. has in stock over 4,000 volumes constituting over

3,500 titles. We receive on average over 50 new titles per week. We cannot read each new title to determine whether there are any sexual explicit portions and if so whether such portions "serve some purpose other than titillation" (even if I knew what that meant). On Exhibit A are listed just a few examples of the multitude of books, magazines or other material sold at Twenty-Third Ave. likely to contain sexually-related narrative or pictorial content, including, in some instances, nudity, that could be considered by some "sexually explicif' or "visual representation[s] or explicit verbal description[s] or narrative account{s] of sexual conducf' that may appeal to a person's "sexual desires." I believe the only way for Twenty-Third Ave. to ensure compliance under the Statute would be to eliminate such materials entirely. Developing an alternative segregated shelving arrangement for books that may be covered under the Statute -- if my staff and I even could determine that book by book, which I believe we
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could not without being extremely overinclusive -- is totally impractical, unduly burdensome and would consume an inordinate amount of time that we do not have. If forced to do so, we would have to cover up or rope off certain sections to ensure that minors would not have access. This would be extremely inconvenient to customers, would completely alter the ambience of the stores, and undoubtedly would have an adverse effect on sales. 9. In short, if the Statute is not enjoined and Twenty-Third Ave. must self-

censor books, it will lose the profits from the sale of those books, and lose even more business because it will appear that the bookstore has an incomplete or inadequate listing of books in our inventory. As importantly, adults and older teenagers will be impeded from access to constitutionally-protected materials. Conclusion 10. For all the reasons stated above, I fear prosecution under the Statute. If

the Statute is not enjoined, Twenty-Third Ave. will be forced either to self-censor our books and magazines to a great degree or risk criminal liability. (The only reason we have not self-censored to date is that we have been advised that the Act is unconstitutional. )
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Dated: April

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4-, 2008

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Exhibit A M a y a Angelou, I K n o w W h y t h e C a g e d B i r d S i n g S t e i n b e c k , Of M i c e a n d M e n Romance novels, including those by Nan Ryan & Linda Howard Graphic novels, including those by Alan Moore Comfort, J o y o f S e x Blume, F o r e v e r Sex education books for teenagers, including GLBTQ: The Survival Guide F o r Q u e e r a n d Questioning Teens, by Huegel Nabokov, L o l i t a Dennis Cooper, The Sluts (winner of 2006 Lambda Literary Awards)

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