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

Filing 5

Declaration of Ken Lizzi. Filed by all plaintiffs. (eo)

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

Doc. 5

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 T e l e p h o n e : (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] Attorneys f o r Plaintiffs

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

POWELL'S BOOKS, INC., e t a l . , Plaintiffs,

Civil No.

CY '08 - 0 50 1 - MC

DECLARATION OF KEN LIZZI

v.
HARDY MYERS, in his official capacity as ATTORNEY GENERAL OF T H E STATE OF OREGON, et aI., Defendants.

Dockets.Justia.com

DECLARATION OF KEN LIZZI

Ken Lizzi, declares under penalties o f perjury: Background 1. I am the General Counsel and Assistant Secretary o f Dark Horse Comics,

Inc. ("Dark Horse"), a plaintiff in this action. I submit this affidavit on behalf o f Dark Horse in support o f plaintiffs' motion for a preliminary injunction t o enjoin the State from enforcing ORS 167.051 to 167.057 (collectively referred to as the "Statute"), an unconstitutional censorship law. 2. Dark Horse is a privately held Oregon company established in 1986 with

its corporate headquarters in Milwaukie, Oregon. It has grown to become the thirdlargest comics publisher in the United States and is
acclaim~d

i n t e r n a t i o n a l l y for the

quality and diversity o f its line. Dark Horse's flagship retail operation is Things From Another World, Inc. ("TFAW') which has three stores throughout the state o f Oregon. I also serve as counsel for TFAW. 3. Dark Horse has proven to be a solid example o f how integrity and

innovation can help broaden a unique storytelling medium and establish a small, homegrown company as an industry giant. In addition to publishing comics from top industry talent like Frank Miller, Mike Mignola, Gerard Way, and comics legend Will Eisner, Dark Horse's highly successful line of comics and products based on popular properties includes S t a r Wars, Indiana Jones, Aliens, Conan, Butry the Vampire Slayer,

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and E m i l y the Strange. Dark Horse currently publishes titles for all ages, ranging from 8 to 55, with a three t o one ratio of male to female readership. 4. T F A W is a retail chain that specializes in the sale o f trade paperbacks,

toys, collectibles and other pop culture material. With five physical stores in Oregon and California it is one o f the largest comic retailers on the west coast. Additionally its internet store is considered an industry leader and a "must visit" for any pop culture collector. Its clientele ranges from children to adult with an average age of 27 and has a three to one ratio o f male to female customers.

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 5. Dark Horse fears that it may be at risk o f criminal prosecution under the

Statute for permitting minors to access constitutionally-protected material published by Dark Horse, which could be deemed "sexually explicit" or to appeal to a person's "sexual desires" under the meaning o f the Statute. It also fears that T F A W may be at risk for selling such material. Dark Horse, however, does not know how to determine what material may cross the vague Jines established under the Statute. 6. Under the Statute, it is a crime to furnish "sexually explicit material" to

anyone under the age of 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 -- o f masturbation, intercourse or genital/oral/anal contact between people and animals. See ORS 167.051. "[F]urnish" is -3-

defined broadly, including "to sell, give, rent, loan or otherwise provide." See ORS 167.051.

7.

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

including employees o f museums, schools, or public libraries, are not liable. Dark Horse does not fall into this exception. Second, Dark Horse would not be liable i f the sexually explicit portions o f the material furnished, or permitted to be viewed, "form merely an incidental part o f 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.

8.

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

under the age o f 18 a "visual representation or explicit verbal description or narrative account o f sexual conduct" for the purpose o f "arousing or satisfying the sexual desires o f the person or the minor. . . . " ORS 167.057. I understand this t o be 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 provision contains the same undefined and vague "incidental part" exception. 9. My understanding is that Dark Horse and T F A W risk criminal prosecution

for furnishing constitutionally-protected materials, including those described herein, to persons "under 13 years o f age" under ORS 167.054. It would be difficult, i f not impossible, to determine whether a child is under 13 years of age at our retailers.
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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 the sexual desire o f the 17-year old. Again, determining whether a user is 17 with any accuracy is not feasible. In addition, Dark Horse publishes comics and other books containing sexually-related content, specifically, in most instances, visual depictions, that may be sexually arousing, d e p e n d i n g on the i n d i v i d u a l . Dark H o r s e w o u l d b e c o m m i t t i n g a f e l o n y i f a 1 7 y e a r - o l d purchased material it publishes to satisfy his or her sexual desire or to become sexually aroused while reading such material -- an act that individual has a right to do.

10.

D a r k H o r s e p u b l i s h e s o v e r t h i r t y c o m i c s o r o t h e r b o o k s p e r m o n t h . On

E x h i b i t A a r e listed j u s t a f e w e x a m p l e s o f t h e m u l t i t u d e o f m a t e r i a l p u b l i s h e d b y D a r k Horse and sold a t T F A W likely t o contain sexually-related narrative or pictorial content, including, in some instances, nudity, that could be considered by some "sexually e x p l i c i t " 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 n a r r a t i v e account[s] o f sexual conduct" that may appeal to a person's "sexual desires." I believe the only way for Dark Horse to ensure compliance under the Statute would be to refrain from publishing this material entirely. Attempting to determine, book by book, what may fall under the purview o f the Statute, including whether there are any "sexual explicit" portions and i f so whether such portions "serve some purpose other than titillation" (even if I knew w h a t that meant) is totally impractical, unduly burdensome and surely would result in o u r overinclusive self-censorship.

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11.

Further, if the Statute is not enjoined and Dark Horse must self-censor the

books it publishes, it undoubtedly will have an adverse effect on the economic viability o f our company. Given the vague and overbroad nature o f the Statute, even i f Dark Horse were t o continue to publish "sexually explicit" materials, its retail stores, including TFAW, also subject t o the Statute, likely would cease substantially or altogether selling such materials, resulting in a significant chilling effect. As importantly, adults and older teenagers will be impeded from access to constitutionally-protected materials.

Conclusion 12. For all the reasons stated above, I fear prosecution under the Statute. I f it

is not enjoined, Dark Horse and T F A W w i l l be forced either to self-censor our comics and books to a great degree or risk criminal liability. (The only reason we have not selfcensored in response to the Statute to date is that we have been advised that it is unconstitutional. )

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Exhibit A Leroy Neiman's: Femlin (afterword by Hugh Hefner) Berserk, by Kentaro Miura Grendel: Behold the Devil, by Matt Wagner E m p o w e r e d , by A d a m W a r r e n Lone W o l f and Cub, by Kazuo Koike Sin City, by Frank Miller

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