Powell's Books, Inc. et al v. Myers et al
Declaration of Solena Rawdah. Filed by all plaintiffs. (eo)
Powell's Books, Inc. et al v. Myers et al
P.K. Runkles-Pearson, OSB No. 061911 email@example.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 firstname.lastname@example.org Rachel G. Balaban email@example.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
UNITED STATES DISTRICT COURT DISTRICT OF OREGON P O W E l l ' S BOOKS, INC., e t a ! . , Plaintiffs, Civil No.
CV '08 - 0 50 1. MO
DECLARATION OF S O l E N A RAWDAH
HARDY MYERS, in his official capacity as ATTORNEY GENERAL OF THE STATE OF OREGON, e t al., Defendants.
PECLARAliON OF SOLcEHA RAWDAH
Solena Rawdah declares under penalties of pe~ury: Background 1. I am the owner o f St. Johns Booksellers LLC ("St. Johns"), a plaintiff in this
action. I submit this affidavit on behalf of St. Johns in support of plaintiffs' motion for a preliminary injunction to enjoin the State from enforcing ORS 167.051 to 167.057 (collectively referred to as the "Statutej, an unconstitutional censorship law which will apply to mainstream book stores such as St. Johns. 2. St. Johns is a neighborhood general-interest bookstore in North Porttand,
offering both new and used books for a wide range of interests. We have served our diverse and rapidly changing neighborhood for three years as of June 2008. We have a staff o f two and stock approximately 15,000 titles. Fear Of Prosecution Under the Statute 3.
St. Johns fears that it may b e at risk o f criminal prosecution under the
Statute for permitting minors to access or purchase constitutionally-protected material at our bookstore, which could be deemed "sexually explicir or to appeal to a person's "sexual desires" under the meaning of the Statute. St. Johns, however, does not know how to determine what books may cross the vague lines established under the Statute. 4. Under the Statute, I understand that 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, or intentionally permits a child to 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 - of masturbation, intercourse or genitaVoraVanal contact between people and animals. "[F]urnish" is defined broadly, including "to sell, give, rent, loan or otherwise provide."
See ORS 167.051.
There are two exceptions under ORS 167.054. First, certain persons,
inclUding employees o f museums, schools, or public libraries, are not liable. St. Johns does not fall into this exception. second, I understand that St. Johns would not be liable
i f the sexually explicit portions of the material furnished. or 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 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 of "arousing or satisfying the sexual desires o f the person or the minor. . . ." ORS 167.057. I understand this to b e a very broad provision encompassing material with textual descriptions, as well as visual depictions. I also believe that the phrase "arousing or 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. 7. My understanding is that under ORS 167.054, St. Johns risks criminal
prosecution for furnishing constitutionally-protected materials to persons "under 13 years o f age." While we may from time to time suggest to a youthful customer that a desired purchase may b e inappropriate, it would be difficult, if not impossible, to "card" - 3-
or determine whether a child is under 13 years of age at our bookstore. Under ORS 167.057, furnishing a 17 yearˇold minor with such material is a crime i f furnished for the purpose o f satisfying the sexual desire o f the 17-year old. Again, determining whether a user is 17 with any accuracy is not feasible. In addition, St. Johns sells books and other materials containing sexually-related content that may be sexually arousing, depending on the individual. Under this section, St. Johns would be committing a felony i f 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.
St. Johns has in stock over 15,000 volumes constituting over 12,000 titles.
We receive on average over 100 new titles per week. Obviously 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 i f I knew what that meant). On Exhibit A are listed a few examples o f the multitude o f books, magazines or other material sold at St. Johns likely to contain sexually-related narrative or pictorial content, including, in some instances, nudity, that could b e considered by some "sexually explicit" or 'Visual representation[s] or explicit verbal description[s] or narrative accountls] of sexual conduct" that may appeal to a person's "sexual desires." I believe the only way for St. Johns to ensure compliance under the Statute at our store would be to eliminate those materials entirely. Developing an alternative segregated shelving arrangement at our store for books that may b e covered under the Act -- if my staff and I could even determine that book by book, which I believe we could not without being extremely overinclusive - is totally impractical, unduly burdensome and would consume an inordinate amount o f time that we do not have. I f forced to do so, we would have to
cover up or rope off many sections in my store to insure that minors would not have access. This would b e extremely inconvenient to customers, would completely alter the ambience of the store, and undoubtedly would have an adverse effect on sales. 9. In short, i f the Statute is not enjoined and St. Johns must self-censor
books, it will lose the profits from the sale o f 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. I f
the Statute is not enjoined, St. Johns 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 selfcensored to date is that we have been advised that the Statute is unconstitutional.)
Exhibit A Maya Angelou, I Know Why the Caged Bird Sings Steinbeck, O f Mice and Men Susan Vreeland, The Passion o f Artemisia Milan Kundera, The Unbearable Lightness o f Being Romance novels, including those by Lisa Kleypas and Stephanie Laurens Graphic novels. including those by Neil Gaiman Books of Photography. including those by Jan Saudek Boston Women's Health Book Collective, Our Bodies, Ourselves Sex education books for teenagers, including The What's Happening to My Body Book for Boys by Linda Madaras
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