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

Filing 37

Memorandum in Support of Request for Declaration of Unconstitutionality and Permanent Injunction. Filed by all plaintiffs. (Related document(s): Motion for Permanent Injunction 36 .) (Attachments: # 1 Appendix A# 2 Appendix B) (Runkles-Pearson, P.K.)

P.K. Runkles-Pearson, OSB No. 061911 [e-mail] STOEL RIVES LLP 900 SW 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 of the Americas, 24th Floor New York, NY 10020 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

POWELL'S BOOKS, INC., et al., Plaintiffs, v. HARDY MYERS, in his official capacity as ATTORNEY GENERAL OF THE STATE OF OREGON, et al., Defendants.

Civil No. CV 08-0501-MO PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION
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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................................................................ iii I. II. INTRODUCTION ............................................................................................................. 1 FACTS ............................................................................................................................... 2 A. The Statutes and Their Provisions ......................................................................... 2 1. Section 057: Furnishing for the Purpose of Sexual Arousal or Satisfaction................................................................................................. 2 a. b. 2. a. b. B. III. Exceptions to Liability Under Section 057 .................................... 2 Affirmative Defenses to Liability Under Section 057 ................... 3 Exceptions to Liability Under Section 054 .................................... 4 Affirmative Defenses to Liability Under Section 054 ................... 4

Section 054: Furnishing Sexually Explicit Material ................................. 3

Effect of the Statutes on Plaintiffs ......................................................................... 5

THE STATUTES ARE UNCONSTITUTIONAL, BOTH FACIALLY AND AS APPLIED ........................................................................................................................... 5 A. B. C. The Standard for a Facial Challenge ...................................................................... 5 The Standard for a Pre-Enforcement As-Applied Challenge ................................ 6 Miller/Ginsberg Defines What Restrictions May Be Placed on Speech Given to Minors ..................................................................................................... 7 1. 2. 3. 4. 5. D. Community Standards.............................................................................. 10 Considering the Work as a Whole ........................................................... 10 Appeal to the Prurient Interest ................................................................. 11 Patent Offensiveness ................................................................................ 11 Serious Value ........................................................................................... 12

Sections 054 and 057 Do Not Meet the Miller/Ginsberg Test, Either Literally or Functionally; That Failure Is Constitutionally Fatal ......................... 13 1. 2. 3. 4. 5. Community Standards.............................................................................. 13 Considering the Work as a Whole ........................................................... 13 Appeal to the Prurient Interest ................................................................. 13 Patent Offensiveness ................................................................................ 14 Serious Value ........................................................................................... 14

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TABLE OF CONTENTS Page E. The Statutes Are Not Narrowly Drawn to Achieve a Compelling State Interest.................................................................................................................. 15 1. The Statutes Are Unnecessary Because the Unchallenged Portion of ORS 167.057 Is Sufficient to Serve the State's Need to Protect Against "Grooming." ............................................................................... 15 A Criminal Burden May Not Shift the Burden of Proof to the Defendant Regarding an Element of the Crime by Requiring the Defendant to Negate the Element ............................................................ 16 The Statutes Do Not Only Restrict Speech Made for the Primary Purpose of Titillation; They Also Restrict Speech for Which Titillation Is One of Several Purposes ..................................................... 17 a. Maynard Does Not Apply; Therefore It Cannot Require the Statutes to Be Read to Require the Primary Purpose of Titillation...................................................................................... 17 Applying Oregon Statutory Interpretation Principles, the Defense Does Not Require a "Primary Purpose" of Titillation...................................................................................... 19 Reading the Statutes to Require a Primary Purpose of Titillation Would Rob Section 054 of Its Separate Meaning from Section 057 .......................................................................... 21

2.

3.

b.

c.

4. 5. F. IV.

Section 057 Prohibits a Substantial Amount of Material That Miller/Ginsberg Would Protect ............................................................... 21 Section 054 Prohibits a Substantial Amount of Material That Miller/Ginsberg Would Protect ............................................................... 22

There Is No Appropriate Limiting Construction That Would Save the Statutes ................................................................................................................. 24 Vagueness Standards ........................................................................................... 25 Both Sections 054 and 057 Are Vague Because the Exception Is Vague ........... 26

THE STATUTES ARE VAGUE ..................................................................................... 25 A. B.

V.

PLAINTIFFS ARE ENTITLED TO DECLARATORY AND INJUNCTIVE RELIEF ............................................................................................................................ 29 A. B. Plaintiffs Are Entitled to Declaratory Relief ....................................................... 29 Plaintiffs Are Entitled to Injunctive Relief .......................................................... 29

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TABLE OF AUTHORITIES Page Cases ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007) ......................................................................................... 8 Am. Booksellers Found. v. Dean, 342 F.3d 96 (2d Cir. 2003) .................................................................................................. 6, 15 Baggett v. Bullitt, 377 U.S. 360 (1964) ................................................................................................................. 26 Bookfriends, Inc. v. Taft, 223 F. Supp. 2d 932 (S.D. Ohio 2002) ...................................................................................... 9 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ................................................................................................................... 6 Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ..................................................................................................... 11, 13, 14 Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219 (2d Cir. 2006) ...................................................................................................... 7 Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141 (9th Cir. 2001) ................................................................................................... 6 Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F.2d 1297 (7th Cir. 1973) ................................................................................................... 9 Consol. Edison Co. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530 (1980) ................................................................................................................... 6 Entm't Software Ass'n v. Blagojevich, 469 F.3d 641 (7th Cir. 2006) ............................................................................................... 9, 25 First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ................................................................................................................... 7 Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) ......................................................................................... 6, 24, 27 Gilder v. PGA Tour, Inc., 936 F.2d 417 (9th Cir. 1991) ................................................................................................... 30 Ginsberg v. New York, 390 U.S. 629 (1968) .......................................................................................................... passim Page iii PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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TABLE OF AUTHORITIES Page Gitlow v. New York, 268 U.S. 652 (1925) ................................................................................................................... 7 Gonzales v. Carhart, 127 S. Ct. 1610 (2007) ............................................................................................................... 6 Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................................................................................................... 25, 27 Hamling v. United States, 418 U.S. 87 (1974) ................................................................................................................... 10 Humanitarian Law Project v. Mukasey, 509 F.3d 1122 (9th Cir. 2007) ................................................................................................... 6 Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), vacated and remanded on other grounds by 393 F.3d 902 (9th Cir. 2004)............................. 24 Info. Providers' Coal. for Def. of the First Amendment v. Fed. Commc'ns Comm'n, 928 F.2d 866 (9th Cir. 1991) ................................................................................................... 26 Kois v. Wisconsin, 408 U.S. 229 (1972) ................................................................................................................. 10 Kolender v. Lawson, 461 U.S. 352 (1983) ................................................................................................................. 26 Miller v. California, 413 U.S. 15 (1973) ............................................................................................................ passim N. Cheyenne Tribe v. Norton, 503 F.3d 836 (9th Cir. 2007) ................................................................................................... 30 Nat'l Ass'n for the Advancement of Colored People v. Button, 371 U.S. 415 (1963) ........................................................................................................... 26, 27 Natural Res. Def. Council v. U.S. Envtl. Prot. Agency, 966 F.2d 1292 (9th Cir. 1992) ................................................................................................. 29 Owens v. Maass, 323 Or. 430, 918 P.2d 808 (1996) ........................................................................................... 20 Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ..................................................................................................................... 8

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TABLE OF AUTHORITIES Page Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004) ............................................................................................. 24, 25 Pocatello Educ. Ass'n v. Heideman, 504 F.3d 1053 (9th Cir. 2007) ................................................................................................... 6 Pope v. Illinois, 481 U.S. 497 (1987) ................................................................................................................. 12 Portland Gen. Elec. Co. v. Bureau of Labor & Indus., 317 Or. 606, 859 P.2d 1143 (1993) ......................................................................................... 20 R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ................................................................................................................. 11 Reno v. ACLU, 521 U.S. 844 (1997) ................................................................................................... 7, 9, 24, 28 Ripplinger v. Collins, 868 F.2d 1043 (9th Cir. 1989) ........................................................................................... 11, 24 Roth v. United States, 354 U.S. 476 (1957) ................................................................................................................. 11 S.O.C., Inc. v. County of Clark, 152 F.3d 1136, amended by 160 F.3d 541 (9th Cir. 1998) ............................................................................... 30 SAIF Corp. v. Walker, 330 Or. 102, 996 P.2d 979 (2000) ........................................................................................... 20 Sammartano v. First Judicial Dist. Court, 303 F.3d 959 (9th Cir. 2002) ................................................................................................... 30 State v. Maynard, 138 Or. App. 647, 910 P.2d 1115 (1996) ................................................................................ 18 State v. Maynard, 168 Or. App. 118, 5 P.3d 1142 (2000) ............................................................................. passim State v. Maynard, 327 Or. 582, 964 P.2d 264 (1998) ..................................................................................... 18, 19 State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992) ........................................................................................... 18

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TABLE OF AUTHORITIES Page Steffel v. Thompson, 415 U.S. 452 (1974) ................................................................................................................. 29 Stenberg v. Carhart, 530 U.S. 914 (2000) ................................................................................................................. 24 United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) ................................................................................................... 24 United States v. Cutting, 538 F.2d 835 (9th Cir. 1976) ................................................................................................... 10 United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) ................................................................................................... 17 United States v. Manning, 527 F.3d 828 (9th Cir. 2008) ................................................................................................... 25 United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705 (2d Cir. 1934) ................................................................................................ 10, 11 United States v. Reese, 92 U.S. (2 Otto) 214 (1875) ..................................................................................................... 24 United States v. Solorzano-Rivera, 368 F.3d 1073 (9th Cir. 2004) ................................................................................................. 16 Zwickler v. Koota, 389 U.S. 241 (1967) ................................................................................................................. 29 Statutes ORS 163.355-.427 ....................................................................................................................... 16 ORS 163.431-.434 ....................................................................................................................... 16 ORS 163.435 ................................................................................................................................ 16 ORS 163.445 ................................................................................................................................ 16 ORS 163.479 ................................................................................................................................ 16 ORS 167.051(1) ............................................................................................................................. 3 ORS 167.051(2) ............................................................................................................................. 3 ORS 167.051(4) ............................................................................................................................. 2 Page vi PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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TABLE OF AUTHORITIES Page ORS 167.051(5) ............................................................................................................................. 3 ORS 167.054 ......................................................................................................................... passim ORS 167.054(2) ........................................................................................................................... 16 ORS 167.054(2)(b) .................................................................................................... 13, 14, 17, 18 ORS 167.054(3)(a) ....................................................................................................................... 17 ORS 167.057 ......................................................................................................................... passim ORS 167.057(1)(b)(A) ........................................................................................................... 15, 16 ORS 167.057(1)(b)(B) ..................................................................................................... 15, 16, 30 ORS 167.057(2) .................................................................................................................... passim ORS 167.057(3)(a) ....................................................................................................................... 17 Constitutional Provisions Or. Const., Art. I, § 8 ................................................................................................................... 18 Other Authorities Challenged Materials in Oregon 1979-2007, http://www.acluor.org/site/DocServer/Challenged_Materials_in_Oregon_1979-2007.xls?docID=2441 ........ 31 Edward John Main, The Neglected Prong of the Miller Test for Obscenity: Serious Literary, Artistic, Political, or Scientific Value, 11 S. Ill. U. L.J. 1159 (1987) ...................................... 12 House Bill 2843, Oregon Laws 2007, ch. 869 ............................................................................... 2 Javier Romero, Comment, Unconstitutional Vagueness and Restrictiveness in the Contextual Analysis of the Obscenity Standard: A Critical Reading of the Miller Test Genealogy, 7 U. Pa. J. Const. L. 1207 (2005) .......................................................................................................... 10 Oregon Intellectual Freedom Clearinghouse, http://oregon.gov/OSL/LD/intellectual.shtml ...... 31 Webster's Third New International Dictionary (2002) .......................................................... 20, 27

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I. INTRODUCTION Plaintiffs, who include Oregonians, sex educators and mainstream disseminators, retailers, publishers, distributors, sellers, purchasers and recipients of periodicals, books, comics, newspapers, motion pictures, videos and sound recordings that are sold, rented or distributed in the state of Oregon (the "State"), seek an order declaring Oregon Revised Statues ("ORS") 167.057 ("Section 057") and 167.054 ("Section 054") (collectively the "Statutes") unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution because they criminalize material that is protected as to both adults and minors, and under the Fifth and Fourteenth Amendments of the U.S. Constitution because they are unconstitutionally vague. Further, plaintiffs seek a permanent injunction against enforcing the Statutes either generally based on a facial challenge or as applied to plaintiffs and those on whose behalf they sue. Under the First and Fourteenth Amendments and the well-established precedent of the U.S. Supreme Court, a state may restrict the distribution of sexually explicit material to minors only if that material is considered to be obscene for minors under a three-part test established by the Court in Miller v. California, 413 U.S. 15 (1973), and Ginsberg v. New York, 390 U.S. 629 (1968). As set forth herein, the Statutes do not meet this narrowly drawn test. They contain no requirement--either literally or functionally--that the restricted work be taken as a whole, appeal to the prurient interest of minors, be patently offensive, lack serious value to minors (whether it be literary, artistic, political or scientific) and be judged under contemporary community standards as to what is not acceptable for minors. The Statutes are not narrowly tailored to a compelling government interest. They prohibit constitutionally protected material and are unconstitutional. The Statutes are unconstitutional under the Fifth and Fourteenth Amendments because they are unconstitutionally vague. The exception to both Sections 054 and 057, that a defendant is not subject to prosecution if the furnished material forms "merely an incidental part of an otherwise nonoffending whole and serve[s] some purpose other than titillation," is impossible to Page 1 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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decipher and subjects even potential defendants who would never be prosecuted to a constitutionally impermissible chilling effect on their free speech rights. For the all of the reasons set forth herein, this Court should grant plaintiffs' request for declaratory and injunctive relief. II. FACTS A. The Statutes and Their Provisions. On July 31, 2007, Governor Kulongoski signed into law House Bill 2843, effective January 1, 2008 as chapter 869 of Oregon Laws 2007, parts of which are codified as the Statutes. The Statutes are censorship laws that are unconstitutional in a multitude of ways. The Statutes are reproduced as Appendix A and are described below. 1. Section 057: Furnishing for the Purpose of Sexual Arousal or Satisfaction.

Section 057 provides that it is a crime for a person to furnish or use with a minor (a person under 18 years old) a visual representation or explicit verbal description or narrative account of sexual conduct 1 for the purpose of arousing or satisfying the sexual desires of the person or the minor. a. Exceptions to Liability Under Section 057.

Section 057 provides only one exception to liability: A person is not subject to prosecution if the person furnishes or uses a representation, description or account of sexual conduct that forms merely an incidental part of an otherwise nonoffending whole and serves some purpose other than titillation. Both parts of the exemption must be met to avoid liability.

"Sexual conduct" means "(a) [h]uman masturbation or sexual intercourse; (b) [g]enitalgenital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals; (c) [p]enetration of the vagina or rectum by any object other than as part of a medical diagnosis or as part of a personal hygiene practice; or (d) [t]ouching of the genitals, pubic areas or buttocks of the human male or female or of the breasts of the human female." ORS 167.051(4). Page 2 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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Section 057 provides no exception to liability for museum, school, law enforcement or medical treatment personnel, or sex educators or parents. b. Affirmative Defenses to Liability Under Section 057.

Section 057 has three affirmative defenses: (1) "[t]hat the representation, description or account was furnished or used for the purpose of psychological or medical treatment and was furnished by a treatment provider or by another person acting on behalf of the treatment provider"; (2) that the defendant reasonably believed the person at issue was not a minor; or (3) that the parties are within three years of age. The affirmative defenses to liability under Section 057, unlike under Section 054, offer no defense for material used for educational purposes and do not protect parents or educators. 2. Section 054: Furnishing Sexually Explicit Material.

Section 054 provides that a person commits the crime of furnishing sexually explicit material to a child "if the person intentionally furnishes 2 a child, 3 or intentionally permits a child to view, sexually explicit material 4 and the person knows that the material is sexually explicit material." Thus the major differences between Section 054 and Section 057 are that Section 054 applies only to dissemination to children under 13 years of age, applies only to visual depictions; does not include "[t]ouching of the genitals, pubic areas or buttocks of the human male or female or of the breasts of the human female;" and, significantly, does not require that the person furnishing the material have any purpose of arousing or satisfying the sexual desires of the recipient.

2 3 4

"Furnishes" means "to sell, give, rent, loan or otherwise provide." ORS 167.051(2). A "child" is a person under 13 years of age. ORS 167.051(1).

"Sexually explicit material" is "material containing visual images of: (a) [h]uman masturbation or sexual intercourse; (b) [g]enital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals; or (c) [p]enetration of the vagina or rectum by any object other than as part of a personal hygiene practice." ORS 167.051(5). Page 3 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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a.

Exceptions to Liability Under Section 054.

A person may not be prosecuted under Section 054 if (1) the person is an employee of a museum, school, law enforcement agency, medical treatment provider or public library, when acting within the scope of the person's regular employment or (2) the sexually explicit portions of the material furnished form merely an incidental part of an otherwise nonoffending whole and serve some purpose other than titillation. That second exception is materially identical to the exception in Section 057. b. Affirmative Defenses to Liability Under Section 054.

Section 054 provides three affirmative defenses to prosecution: (1) that the material was furnished, or the viewing permitted, solely for the purpose of sex education, art education or psychological treatment and was furnished or permitted by the child's parent or legal guardian, an educator or treatment provider, or another person acting on behalf of such party; (2) that the defendant reasonably believed the person at issue was not a child; or (3) that the parties are within three years of age. Significantly, a parent is not eligible for the affirmative defense if he or she furnishes the material to a child for any reason other than those specifically enumerated in the affirmative defense. Though a sex or art educator may raise a defense after being charged with violation of Section 054, the educator is not exempt from prosecution in the same way a museum or school employee would be. The educator must still plead and prove his or her educator status as an affirmative defense. The Statutes do not define the terms "art education" and "sex education." Therefore people who wish to assert that defense must take the risk when providing material that they may not be able to assert the defense successfully. In addition, even if a potential defendant believed that it could assert one of the affirmative defenses successfully, that defendant would still be subject to the expense, stigma and other burdens of being criminally prosecuted. Many people will naturally try to avoid those burdens by restricting their dissemination of materials that may violate the Statutes. Thus even

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those who fall within the affirmative defenses will be subject to a chilling effect on their constitutionally protected activities. B. Effect of the Statutes on Plaintiffs. Plaintiffs are, or represent, Oregonians, sex educators, grandparents and mainstream retailers, publishers, distributors, sellers, purchasers and recipients of periodicals, books, comics, newspapers, motion pictures, videos and sound recordings that are sold, rented or distributed in the State. Plaintiffs are individually and more fully described in Appendix B and in the declarations plaintiffs filed together with their motion for a preliminary injunction, which plaintiffs incorporate herein by reference. All of plaintiffs' activities arguably come within the reach of the Statutes. Although the bookstore and trade association plaintiffs are not and do not represent so-called "adult" retailers, they fear prosecution under Sections 054 and 057 for offering, distributing or selling material that might be deemed by some to be restricted by the Statutes ("Restricted Speech"). Planned Parenthood of the Columbia/Willamette and Cascade AIDS Project distribute Restricted Speech to the public at large and to individual children and minors to teach safe sexual behavior; they fear prosecution based on those activities. Candace Morgan and the members of the American Civil Liberties Union of Oregon, Inc. (the "ACLU of Oregon") are individuals resident in Oregon who fear prosecution for giving First Amendmentprotected materials to children and minors who are friends and relatives. If any plaintiffs are found to have violated Section 054, they risk penalties including up to one year of imprisonment and/or a fine of up to $6,250. If they are found to have violated Section 057, they risk up to five years of imprisonment and/or a fine of up to $125,000. III. THE STATUTES ARE UNCONSTITUTIONAL, BOTH FACIALLY AND AS APPLIED A. The Standard for a Facial Challenge. A content-based restriction on protected speech (such as that at issue here) is presumptively invalid and can be upheld only if defendants prove it is an effective and "precisely

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drawn means of serving a compelling state interest." Consol. Edison Co. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 540 (1980); see also Pocatello Educ. Ass'n v. Heideman, 504 F.3d 1053, 1059 (9th Cir. 2007) (stating proposition); Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (same). As plaintiffs demonstrate below, the Statutes are not narrowly and precisely drawn. When challenging a statute because it restricts more material than the First Amendment allows, the amount of constitutionally protected expression should be judged "in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). With respect to the challenge based on vagueness, "[i]n the First Amendment context, facial vagueness challenges are appropriate if the statute clearly implicates free speech rights," Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1149 (9th Cir. 2001), as the Statutes clearly do here. B. The Standard for a Pre-Enforcement As-Applied Challenge. In the Complaint, plaintiffs raised both a facial and an as-applied challenge to the Statutes. (Complaint v.A.) When this point was raised during oral argument on the preliminary injunction, the Court expressed doubts as to the viability of a pre-enforcement as-applied challenge. In fact, precedent supports such a challenge. In Gonzales v. Carhart, 127 S. Ct. 1610, 1638 (2007), the Supreme Court specifically approved the use of pre-enforcement asapplied challenges. In that case, the Court stated, "[t]he considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge." Id. Pre-enforcement as-applied challenges are also appropriate in the vagueness context. See Humanitarian Law Project v. Mukasey, 509 F.3d 1122 (9th Cir. 2007) (example of such challenge); see also Am. Booksellers Found. v. Dean, 342 F.3d 96, 105 (2d Cir. 2003) ("In this case, we do not need to determine whether the statute is substantially overbroad; we can simply determine whether the statute can be constitutionally applied to the internet speech upon

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which plaintiffs base their suit."); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219 (2d Cir. 2006) (example of such challenge). Plaintiffs' as-applied challenges are appropriate and ripe for relief. C. Miller/Ginsberg Defines What Restrictions May Be Placed on Speech Given to Minors. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." That amendment has been applied to the states through the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925). Obscene material is unprotected by the First Amendment. Miller, 413 U.S. at 27. However, not all sexually explicit material is obscene. A state may only restrict works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Id. at 24. When evaluating whether a state may suppress First Amendment-protected materials, courts apply "strict scrutiny," which means the state's restriction must be narrowly tailored to achieve a compelling interest. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978) (describing principle). In Ginsberg, 390 U.S. at 639-40, the Supreme Court determined that the state's interest in the well-being of youth, and the provision of support for parents' authority to direct the rearing of their own children in their own household, 5 constituted a compelling interest that allowed the restriction of some materials not deemed obscene. See also Reno v. ACLU, 521 U.S. 844, 865 (1997). That interest, however, does not justify an unnecessarily broad suppression of speech addressed to adults. Id. at 875. It is the state's burden to show that laws that suppress speech are narrowly tailored and, that a less restrictive provision would not accomplish the same goals as the law being challenged. Id. at 879.

As described below, the Statutes do not support a parent's authority to direct the rearing of their minor children. In fact, the Statutes would allow for a parent to be prosecuted for providing Restricted Material. Page 7 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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Taking together the holdings in Miller and in Ginsberg, the U.S. Supreme Court uses a three-part test for determining whether material that is First Amendment-protected as to adults is unprotected as to minors. Under that test, for sexual material to be constitutionally unprotected as to a minor, it must, taken as a whole, (1) (2) (3) predominantly appeal to the prurient, shameful or morbid interest of minors; be patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and lack serious literary, artistic, political or scientific value.

Only material that meets this test can be barred from distribution to minors and only if such prohibition does not unduly infringe on adult access. Cf. ACLU v. Gonzales, 478 F. Supp. 2d 775, 809 (E.D. Pa. 2007). Material that falls outside the narrow Miller/Ginsberg test is protected by the First Amendment--whether the recipient be an adult or a child. Because the test determines what falls within the universe of what the state legitimately may regulate--and therefore is part of evaluating whether the state has met its burden to show that the statute is "narrowly tailored"--vagueness and uncertainty should be resolved in favor of a finding of unconstitutionality. Plaintiffs do not argue that a statute has to state the Miller/Ginsberg test verbatim for the statute to comply with the First Amendment (though defendants have previously cited no case in which a statute containing a test substantially different from Miller/Ginsberg has been upheld, and counsel for plaintiffs know of no such case). 6 It is sufficient if--and, in fact, necessary that--the substantive requirements of the test are embodied in the statute.

In fact, to plaintiffs' knowledge, no court has ever authorized the states to adopt a different standard that functionally had similar results; some U.S. Supreme Court precedent appears to urge the adoption of the Miller/Ginsberg test directly. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69 (1973) ("[T]he applicable [state] law, as written or authoritatively interpreted by the [state] courts, [must] meet[] the First Amendment standards set forth in Miller v. California . . . ."). Page 8 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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Although the Miller/Ginsberg test is generally referred to as a three-part test, there are actually five substantive components. For a restriction on access by minors not to violate the First Amendment, material must (1) be taken as a whole, (2) appeal to the prurient interest of minors, (3) contain content that is patently offensive to the adult community as a whole as to what is suitable for minors, (4) apply contemporary community standards and (5) lack serious value for minors. As demonstrated below, neither Section 057 nor Section 054 includes all of these requirements; therefore they are unconstitutional under the First Amendment. Miller/Ginsberg is precisely about the sale of sexually explicit material to minors, and it expressly limits what material can be prohibited. As the Seventh Circuit held not long after the decision in Ginsberg, government "may not, consonant with the First Amendment, go beyond the limitations inherent in the concept of variable obscenity [set forth in Ginsberg] in regulating the dissemination to juveniles of `objectionable' material." Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F.2d 1297, 1302 (7th Cir. 1973). More recently, the Seventh Circuit, after quoting this excerpt from Cinecom, affirmed a finding that an Illinois statute is unconstitutional because, as here, it did not require the material to be considered as a whole and did not require that the material lack serious value. Entm't Software Ass'n v. Blagojevich, 469 F.3d 641, 647 (7th Cir. 2006). Forty-five states and the District of Columbia have laws restricting the sale of sexually explicit materials to minors. Virtually all comply with Miller/Ginsberg. Those that do not are not enforced or have been struck down in lower courts, whose decisions are usually not appealed. See, e.g., Bookfriends, Inc. v. Taft, 223 F. Supp. 2d 932 (S.D. Ohio 2002) (Ohio definition of "harmful to juveniles" enjoined as not in compliance with Miller/Ginsberg test). Each of the five substantive requirements is essential in upholding First Amendment rights. The omission of any one of them is sufficient to render the statute unconstitutional. See Reno, 521 U.S. at 873 & n.38 (explaining that each part of test provides important limiting principle that helps to isolate what is protected: "Even though the word `trunk,' standing alone, Page 9 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part description of a species of gray animals."). 1. Community Standards.

Relating the test (except for serious value) to community standards (whether state or local) permits the finders of fact (whether lay jury persons or judges), as well as those in commerce to whom the law applies, to base their determinations on measures that are presumably known to them. Community standards ensure that material is not judged by its effect on the most sensitive or insensitive person. Hamling v. United States, 418 U.S. 87, 107 (1974); United States v. Cutting, 538 F.2d 835, 841 (9th Cir. 1976). Further, it is a recognition of the diversity and size of the nation. "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Miller, 413 U.S. at 32. 2. Considering the Work as a Whole.

Considering the material as a whole prevents a work from being banned or restricted when it is primarily First Amendment-protected, but includes a portion that, if taken out of context, could appear to be nonprotected. Kois v. Wisconsin, 408 U.S. 229, 231-32 (1972). For example, in Kois, the Court held a "Sex Poem" was not obscene because "its placement amid a selection of poems in the interior of a newspaper" indicated its purpose was attempted creation of work with artistic value. Id. at 231. Examining offensive portions in context with the overall work allows the trier of fact to determine whether the work contains a purpose beyond just portraying "filth for its own sake." United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 707 (2d Cir. 1934). 7
7

The requirement that a work should be "taken as a whole" originated in that opinion by Judge Learned Hand. See Javier Romero, Comment, Unconstitutional Vagueness and Restrictiveness in the Contextual Analysis of the Obscenity Standard: A Critical Reading of the Miller Test Genealogy, 7 U. Pa. J. Const. L. 1207, 1214 (2005). Although James Joyce's Ulysses contained passages properly classified as obscene, the work was not obscene when taken as a (continued . . .) Page 10 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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3.

Appeal to the Prurient Interest.

"Sex . . . has indisputably been a subject of absorbing interest to mankind through the ages," and the ability to freely discuss ideas about sex is important to the "development and wellbeing of our free society." Roth v. United States, 354 U.S. 476, 487, 488 (1957). Therefore, appeal to the "prurient interest" does not refer to all matters dealing with sex or that engender normal sexual arousal, but only those that appeal to a shameful or morbid interest in sex. Miller, 413 U.S. at 16 n.1; Roth, 354 U.S. at 487 & n.20 (noting that "sex and obscenity are not synonymous" and that "prurient" refers to a "'shameful or morbid'" interest (citation omitted)); Ripplinger v. Collins, 868 F.2d 1043, 1054 (9th Cir. 1989) ("[T]he `prurient interest' portion of the obscenity test is not satisfied if the jury merely finds that the materials would arouse normal sexual responses."). The "prurient interest" requirement differentiates a work that is "harmful to minors" from one that appeals to a "`good old fashioned . . .' interest in sex." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 499 (1985) (citation omitted). Thus this requirement protects material that has mainstream sexual appeal. 4. Patent Offensiveness.

The "patently offensive" element of the Miller/Ginsberg test is important because it sets limits on what kinds and what manner of sexual depictions constitute obscenity. This element of the obscenity test refers to the extent to which the material appeals to the prurient interest or the manner in which the sexual conduct is depicted. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388 (1992) ("A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience--i.e., that which involves the most lascivious displays of sexual activity."). Only extensive, detailed or otherwise graphic depictions of ultimate sexual conduct fall outside the reach of the First Amendment.

(. . . continued) whole because the book's "dominant effect" was literary depiction of the struggles of humanity, not creation of lust. One Book, 72 F.2d at 706-08. Page 11 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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5.

Serious Value.

Finally, the "serious value" prong of the Miller/Ginsberg test is a significant and necessary safety net for plaintiffs. A work that possesses one of the enumerated kinds of serious value is protected speech under the First Amendment. As one commentator explains: "[p]rurient interest and patent offensiveness define obscenity, but serious value identifies protected speech." Edward John Main, The Neglected Prong of the Miller Test for Obscenity: Serious Literary, Artistic, Political, or Scientific Value, 11 S. Ill. U. L.J. 1159, 1161 (1987). Thus the "serious value" element inquires not whether a work appeals to the prurient interest or contains patently offensive sexual content; rather the inquiry is whether the work deserves First Amendment protection even though it possesses those qualities. If a work has serious value-- whether it be art, literature or even entertainment--the publisher, distributor, retailer or librarian does not have to struggle with whether the material may appeal to the prurient interest of a teenager. Such clarity in an otherwise grey area is a societal benefit in and of itself. Communications of serious value are and should be protected by the First Amendment. As Justice White stated in Pope v. Illinois, 481 U.S. 497, 500 (1987): In Miller itself, the Court was careful to point out that "[t]he First Amendment protects works, which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent." And as Justice Stevens said, dissenting in the same case: The purpose of the third element of the Miller test is to ensure that the obscenity laws not be allowed to "`level' the available reading matter to the majority or lowest common denominator of the population. . . . . It is obvious that neither Ulysses nor Lady Chatterley's Lover would have literary appeal to the majority of the population." F. Schauer, The Law of Obscenity 144 (1976). Id. at 512 (Stevens, J., dissenting).

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D.

Sections 054 and 057 Do Not Meet the Miller/Ginsberg Test, Either Literally or Functionally; That Failure Is Constitutionally Fatal. Sections 057 and 054 simply do not contain, functionally or literally, the key

requirements of the Miller/Ginsberg standard. 1. Community Standards.

Sections 057 and 054 contain no requirement that prohibited material meet contemporary community standards as to what is not acceptable for minors. Although those sections undoubtedly restrict some material that contemporary community standards would also restrict, there is no requirement that the finder of fact be guided and limited by community standards. That is a clear violation of the Miller/Ginsberg standard. 2. Considering the Work as a Whole.

There is no requirement that the work be taken as a whole. The exception in ORS 167.057(2) and 167.054(2)(b) for work that "forms merely an incidental part of an otherwise nonoffending whole and serves some purpose other than titillation" might look as if it fulfills that requirement. However, even if it were read that way, the word "and" linking the two clauses of the defense means that a work will not be taken as a whole unless it also serves some purpose other than titillation. Thus if one item in the work is deemed to have the purpose of titillation, the work does not have to be taken as a whole. That is a clear violation of the Miller/Ginsberg standard, and it allows the restriction of nonobscene, constitutionally protected works. 3. Appeal to the Prurient Interest.

There is no requirement that the restricted material appeal to the prurient interest of minors. The vast majority of "sexual conduct" (sexual intercourse, masturbation, touching of breasts or buttocks, etc.) is not "shameful or morbid" in any way. Brockett, 472 U.S. at 499. Section 057 prohibits material that depicts or describes sex and sexually related acts, and Section 054 restricts material that depicts the same sex or sexually related acts. That may in some instances be titillating (i.e., sexually arousing), but it is not material that appeals per se to a shameful or morbid interest in sex. Instead, they may well appeal to what the Supreme Court Page 13 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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called "good old fashioned . . . interest in sex." Brockett, 472 U.S. at 499 (internal quotation marks and citation omitted). Thus restricting materials that titillate, that are intended to sexually arouse, or even that actually arouse the viewer does not meet the "prurient interest" prong of Miller/Ginsberg. Neither Miller nor Ginsberg describes "sexual arousal" as a prohibited effect of otherwise protected material, any more than being depressed, happy or angry as a result of reading material may cause the material to be criminalized. It has been said that the classic works of Henry Miller (Tropic of Cancer and Tropic of Capricorn), current romance novels and many mainstream movies were written or produced with an intent (not necessarily the sole intent) to sexually arouse. Thus, under defendants' interpretation, any book, magazine, motion picture, etc., that may sexually arouse a reader and thus can be presumed to have been created with an intent to arouse may fall within the scope of the Statutes, even though does not appeal to the prurient interest. This alone is a substantial amount of overbreadth. 4. Patent Offensiveness.

The Statutes contain no requirement that the restricted material be patently offensive. Sections 057 and 054 restrict viewing or reading material describing or depicting sexual acts. Certainly, those acts may sometimes be presented in a way that is patently offensive--but there is nothing in Section 057 or Section 054 that ensures that only patently offensive material is restricted. In its Memorandum opposing the motion for preliminary injunction, the State conceded that Sections 057 and 054 lack the patent offensiveness safeguard of Miller/Ginsberg. (Memorandum at 4-5.) 5. Serious Value.

Nothing in Section 057 or Section 054 provides an exemption for works that have serious value to minors. The exception in ORS 167.057(2) and 167.054(2)(b)--the logical place to include a provision for serious value--refers only to whether the material is titillating and the nature of the relation of the description or depiction of "sexual conduct" or the "sexually explicit material" to the whole work. Neither of those are sufficient to imbue the Statutes with a serious Page 14 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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value requirement; as described above, the entire purpose of the "serious value" element is to protect materials that have serious value despite the sexual nature of their content. 8 In its Memorandum opposing the motion for preliminary injunction, the State conceded that Sections 057 and 054 lack the serious value safeguard. (Memorandum at 4-5.) E. The Statutes Are Not Narrowly Drawn to Achieve a Compelling State Interest. Miller/Ginsberg defines what material the state may lawfully restrict as to minors to fulfill the compelling state interest of protecting minors. The Statutes are unconstitutional if they are not narrowly tailored to what Miller/Ginsberg allows them to restrict and if they restrict more than is necessary to fulfill that interest. As described below, the Statutes fail on both counts. 1. The Statutes Are Unnecessary Because the Unchallenged Portion of ORS 167.057 Is Sufficient to Serve the State's Need to Protect Against "Grooming."

As stated above, plaintiffs do not challenge ORS 167.057(1)(b)(B), which is a genuine "luring" provision that criminalizes the furnishing of sexually explicit materials to minors for the purpose of inducing minors to engage in sexual activity (itself a crime). However, subsection (1)(b)(A), which is directed toward materials that arouse or satisfy the sexual desires of a minor, is not such a luring provision. A minor's sexual arousal or satisfaction is not a crime. In the preliminary injunction hearing, the State attempted to justify that provision on the basis that its purpose is to stop sexual predation caused by "grooming" or enticing child victims. The Second Circuit responded to a similar argument about "grooming" and rejected it, stating: Vermont's interest in preventing pedophiles from "grooming" minors for future sexual encounters can be effectively addressed through enforcement of Section 2828, which regulates electronic "luring." Am. Booksellers, 342 F.3d at 102. In addition, as discussed below, the "incidental part" and "nonoffending whole" provisions are unclear. Page 15 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION
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The same is true here; the State could vigorously enforce subsection (1)(b)(B) and prosecute violations of that subsection without impacting First Amendment rights. 6 Further, there is no language in subsection (1)(b)(A) that limits its scope to the practice of "grooming." The provision applies equally to a 17-year-old teenager giving a 14-year-old sibling a book and highlighting the "good parts"; a bookseller recommending a romance novel to a 17-year-old college student who asks for a "sexy novel" to read on a dateless weekend; or a 21year-old husband giving his 17-year-old wife a book to sexually arouse her. 2. A Criminal Burden May Not Shift the Burden of Proof to the Defendant Regarding an Element of the Crime by Requiring the Defendant to Negate the Element.

The law is clear that "[i]f a defense negates an element of the crime, rather than mitigates culpability once guilt is proven, it is unconstitutional to put the burden of proof on the defendant." United States v. Solorzano-Rivera, 368 F.3d 1073, 1079 (9th Cir. 2004) (internal quotation marks and citation omitted). The requirement by ORS 167.054(2) and 167.057(2) that a defendant may only be liable for furnishing material that has a titillating purpose does not form an incidental part of an otherwise nonoffending whole. Both of those subsections begin with the proviso, "[a] person is not liable to prosecution for violating [the statute] if." That proviso does not make clear whether the subsections constitute a defense (in which case the burden of proof is on the defendant) or whether they constitute elements of the crime (in which case the burden of proof on the prosecution). If it is a defense, both Sections 054 and 057 are unconstitutional and cannot stand.

Oregon has a number of other statutes criminalizing luring of various kinds. ORS 163.355-.427 (various forms of sexual contact with minors of various ages), 163.431-.434 (luring minors over Internet), 163.435 (contributing to sexual delinquency of minor), 163.445 (sexual misconduct with minor), 163.479 (unlawful contact with minor by sex offender), 167.057(1)(b)(B) (furnishing sexual material for purpose of inducing minor to engage in sexual conduct). Page 16 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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ORS 167.054(3)(a) and 167.057(3)(a), which set forth categories of persons who are not subject to prosecution under Sections 054 and 057 are expressly labeled affirmative defenses. Thus the prosecution may use those affirmative defenses to force the defendant to prove why he or she is not culpable of a crime. That is unconstitutional. See United States v. Davenport, 519 F.3d 940, 945 at n.3 (9th Cir. 2008). 3. The Statutes Do Not Only Restrict Speech Made for the Primary Purpose of Titillation; They Also Restrict Speech for Which Titillation Is One of Several Purposes.

At the preliminary injunction hearing, a key question was the meaning of the defenses in ORS 167.057(2) and 167.054(2)(b). Neither Oregon case law nor Oregon principles of statutory construction support the State's argument that the Statutes only restrict speech made for the primary purpose of titillation. a. Maynard Does Not Apply; Therefore It Cannot Require the Statutes to Be Read to Require the Primary Purpose of Titillation.

Oregon case law, if on point, would provide context and meaning when the bare words might not otherwise have meaning. Under both Sections 054 and 057, defendants are not liable to prosecution if the material at issue "forms merely an incidental part of an otherwise nonoffending whole and serves some purpose other than titillation." Interpreting that exception is key to understanding how both portions of the Statutes--and especially that exception-- actually operate. Plaintiff is aware of only one case that even arguably provides a definitive state law interpretation of the statute at issue: State v. Maynard ("Maynard III"), 168 Or. App. 118, 5 P.3d 1142 (2000). Although Maynard III involved a statute with text that was similar in many ways to the Statutes in this case, the Maynard III court did not provide an interpretation that is useful to this case because that court was exclusively focused on an issue that does not require interpretation here: whether the minor's or the furnisher's titillation was the prohibited harmful effect against which the statute was directed. Page 17 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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Case law interpreting Article I, section 8, of the Oregon Constitution provides that a statute that restricts speech may nonetheless be found constitutional under the Oregon Constitution if the statute is directed at an otherwise illegitimate effect of an action related to speech, rather than the speech itself. State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992). In Maynard I, the Oregon Court of Appeals had determined in a previous proceeding that the statute at issue (a prohibition on furnishing certain visual materials to people under age 18) was unconstitutional because it did not spell out the forbidden effects it sought to prevent. State v. Maynard ("Maynard I"), 138 Or. App. 647, 910 P.2d 1115 (1996). The decision had been appealed to the Oregon Supreme Court, which remanded with instructions to reconsider that decision in light of another recent Oregon Supreme Court decision. State v. Maynard ("Maynard II"), 327 Or. 582, 964 P.2d 264 (1998). On remand, the Oregon Court of Appeals went beyond the text of the specific statutory provision at issue to seek meaning in the context of the entire statute: "We now examine the context of the statute to determine whether it sufficiently identified the harmful effects it sought to prevent." Maynard III, 168 Or. App. at 123. As part of that inquiry, the Oregon Court of Appeals considered whether the statute's affirmative defense clarified the forbidden effects that the overall statute sought to prevent. That defense provided: "That the defendant was charged with the sale, showing, exhibition or display of an item, those portions of which might otherwise be contraband, forming merely an incidental part of an otherwise nonoffending whole and serving some legitimate purpose other than titillation." Maynard III, 168 Or. App. at 124 (citation omitted). That is similar, though not the same as, the exemptions in Sections 057 and 054. ORS 167.057(2) and 167.054(2)(b). The court of appeals was concerned with the meaning of "titillation" (which it defined using a dictionary definition) and, more importantly, whose titillation the statute was proscribing. Was it the defendant's or the victim's? Maynard III, 168 Or. App. at 124-25. The court concluded, based on the context of the statute, that the defense sought to prevent the victim's Page 18 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF REQUEST FOR DECLARATION OF UNCONSTITUTIONALITY AND PERMANENT INJUNCTION

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titillation. Id. It noted that, as every other part of the statute sought to protect the victim, the defense would be nonsensical otherwise: "[I]t would make no sense to shield a defendant from criminal liability merely because that defendant did not primarily intend to titillate him or herself by engaging in the prohibited conduct . . . the defense applies to those materials not primarily intended to titillate the victim." Id. After that brief observation, the court considered the remainder of the statute without further interpretation of the affirmative defense. The court ultimately concluded that the statute was unconstitutionally overbroad and was not susceptible to any narrowing construction. The State will probably argue that the brief passage in Maynard III interpreting the defense shows that, under Oregon case law, the Statutes prohibit only materials that are primarily intended to titillate, not materials that may be intended to titillate as well as (for example) educate, inform or entertain. That is a gross misreading of Maynard III. In fact, Maynard III was not concerned at all with whether the defendant might have had some purpose other than titillation. Instead, Maynard II was concerned with who was being titillated, and its reference to a "primary intent" was simply part of an aside that it would be silly, in light of the rest of the statute, to allow a defense because the defendant was not primarily trying to titillate himself. It is not surprising, therefore, that Maynard III offers absolutely no explanation about whether material with purposes in addition to titillation violates Sections 057 and 054. That question was not even on the table for the Maynard III court. Maynard III's sole relevance to this case is that it defined "titillation" as "sexual excitement or arousal." 168 Or. App. at 124. b. Applying Oregon Statutory Interpretation Principles, the Defense Does Not Require a "Primary Purpose" of Titillation.

Because Oregon case law provides no guidance as to the meaning of the phrase "some purpose other than titillation" in the context of a work with multiple purposes, this Court should apply Oregon statutory interpretation principles to determine what that phrase means before ruling on the Statutes' constitutionality.