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

Filing 18

Declaration of Brad Smith. Filed by all plaintiffs. (eo)

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Powell's Books, Inc. et al v. Myers et al Doc. 18 P.K. Runkles-Pearson, OSB No. 061911 pkrunkles-pearson@stoel.com S T O E l RIVES LLP 9 0 0 S W Fifth Avenue, Suite 2600 Portland, O R 9 7 2 0 4 T e l e p h o n e : (503) 2 2 4 - 3 3 8 0 F a c s i m i l e : (503) 2 2 0 - 2 4 8 0 Michael A. Bamberger mbamberger@sonnenschein.com Rachel G. Balaban rbalaban@sonnenschein.com S O N N E N S C H E I N NATH & R O S E N T H A L L l P 1221 Avenue o f the Americas, 24th Floor N e w York, N Y 1 0 0 2 0 T e l e p h o n e : (212) 7 6 8 - 6 7 0 0 F a c s i m i l e : (212) 7 6 8 - 6 8 0 0 A t t o r n e y s f o r Plaintiffs UNITED STATES DISTRICT C O U R T DISTRICT O F OREGON POWELL'S BOOKS, INC., e t aI., Plaintiffs, Civil NúV '08 - 0 50 ,. 140 .- . DECLARATION OF BRAD SMITH v. HARDY MYERS, in his official capacity as A T I O R N E Y G E N E R A L OF T H E S T A T E O F OREGON, e t al. , Defendants. Dockets.Justia.com DECLARATION O F BRAD SMITH B r a d S m i t h d e c l a r e s u n d e r p e n a l t i e s of Background 1. pe~ury: . I a m the owner of Bluejay, Inc. d/b/a Paulina Springs Books ("Paulina's"), a plaintiff in this action. I submit this affidavit on behalf o f Paulina's in support of plaintiffs' motion for a preliminary injunction t o enjoin the State from enforcing ORS 167.051 t o 167.057 (collectively referred t o a s the "Statute"), an unconstitutional censorship law which will apply to mainstream book stores such as Paulina's. 2. Paulina's is a retailer of predominantly n e w books, with a broad range of book genre including, but not limited to, general fiction, history, outdoor recreation, c h i l d r e n and a d o l e s c e n t s , t r a v e l , s e l f - h e l p , e d u c a t i o n , p a r e n t i n g , C h r i s t i a n , and inspirational. W e operate two stores. O u r store in Sisters, OR has been in operation since 1992. W e opened a store in Redmond, OR on December 1 , 2 0 0 7 . Fear O f Prosecution Under the Statute 3. Paulina's fears that it m a y be a t risk o f criminal prosecution under the Statute f o r permitting m i n o r s t o a c c e s s o r p u r c h a s e c o n s t i t u t i o n a l l y - p r o t e c t e d material a t our bookstores, which could be deemed "sexually explicit" o r to appeal to a person's "sexual desires" under the meaning o f the Statute. Paulina's, however, does not know h o w t o d e t e r m i n e w h a t b o o k s m a y cross t h e v a g u e lines e s t a b l i s h e d u n d e r t h e Statute. 4. I understand that under the Statute, it is a crime t o furnish "sexually explicit material" t o anyone under the age of 13 if the person "intentionally furnishes a child, or intentionally permits a child t o view, sexually explicit material and the person - 2- 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 genital/oraVanal contact between people and animals. "[F]urnish" is defined broadly, including ''to sell, give, rent, loan o r otherwise provide." See ORS 167.051. 5. There are two exceptions under ORS 167.054. First, certain persons, including employees of museums, schools, o r public libraries, are not liable. Paulina's does not fall into this exception. Second, I understand that Paulina's 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 d o 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 o f 18 a "visual representation o r explicit verbal description or narrative a c c o u n t o f sexual 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 sexual d e s i r e s o f the person o r the minor. . . ." O R S 167.057. I understand this t o be very broad encompassing material with textual descriptions, a s well as visual depictions. I also believe that the phrase "arousing o r satisfying the sexual desires," which is undefined under the Act, is vague. In addition, this section contains the same undefined and v a g u e " i n c i d e n t a l part" e x c e p t i o n . 7. My understanding is that under ORS 167.054, Paulina's risks criminal prosecution for furnishing constitutionally-protected materials to persons "under 13 years o f age." While we may from time t o time suggest to a youthfUl customer that a -3- desired purchase m a y be inappropriate, it would be difficult, if not impossible, to "card" o r determine whether a child is under 13 years of age at o u r bookstores. Under D R S 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 w h e t h e r a u s e r is 17 with a n y accuracy is not feasible. In addition, Paulina's sells books and o t h e r materials containing sexually-related content that may be sexually arousing, depending on the individual. Under this section, Paulina's would be committing a felony if a 17 year-old purchased a book t o satisfy his o r h e r sexual desire o r to become sexually aroused while reading such a book -- an act that individual has a right t o do. 8. Paulina's has in stock over 11,000 volumes constituting o v e r 9,000 titles. W e receive on average over 5 0 to 150 new titles p e r week. Obviously we cannot read each new title to determine whether there are any sexual explicit portions and if s o whether such portions "serve some purpose o t h e r than titillation" (even if I knew what that meant). On Exhibit A are listed j u s t a few examples o f the multitude o f books, m a g a z i n e s o r o t h e r material s o l d a t P a u l i n a ' s l i k e l y t o c o n t a i n s e x u a l l y - r e l a t e d n a r r a t i v e o r pictorial content, including, in some instances, nudity, that could be considered by s o m e " s e x u a l l y e x p l i c i f ' o r ''visual r e p r e s e n t a t i o n [ s ] o r 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 ] o r narrative account[s] o f sexual c o n d u c f ' that m a y appeal to a person's "sexual desires." b e l i e v e the o n l y w a y f o r P a u l i n a ' s t o e n s u r e c o m p l i a n c e u n d e r t h e S t a t u t e a t o u r s t o r e s would be to eliminate those materials entirely. Developing an alternative segregated shelving arrangement at o u r stores f o r books that may be covered u n d e r the Statute -- if m y s t a f f a n d I c o u l d e v e n d e t e r m i n e t h a t b o o k b y book, w h i c h I b e l i e v e w e could n o t without being extremely overinclusive -- is totally impractical, unduly burdensome and -4- would consume an inordinate amount of time that we do not have. If forced t o d o so, we would have t o cover up or rope off many sections in m y stores t o ensure that minors w o u l d not h a v e a c c e s s . T h i s w o u l d be e x t r e m e l y i n c o n v e n i e n t t o c u s t o m e r s , w o u l d 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 Paulina's 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 a c c e s s t o c o n s t i t u t i o n a l l y - p r o t e c t e d materials. Conclusion 10. For all the reasons stated above, I fear prosecution under the Statute. If it is not enjoined, Paulina's will be forced either to self-censor our books and magazines to a great degree o r risk criminal liability. (The only reason we have not self-censored to date is that we have been advised that the Statute is unconstitutional.) Dated: A P r i l l k - , 2 0 0 8 1f~ B R A D SMITH -5 - Exhibit A M a y a Angelou, I K n o w Why the C a g e d B i r d Sings S t e i n b e c k , O f M i c e a n d Men R o m a n c e n o v e l s , i n c l u d i n g t h o s e b y N a n Ryan, L i n d a H o w a r d , & C h e y e n n e M c C r a y B o o k s o f Photography, including The Full B o d y Project Comfort, J o y o f S e x Niffenegger, Time Traveler's Wife Blume, F o r e v e r S e x education b o o k s f o r teenagers, including B o d y Drama, S e x f o r Guys, It's Perfectly Normal N a b o k o v , Lolita A-1

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