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

Filing 6

Declaration of William Peters. Filed by all plaintiffs. (eo)

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

Doc. 6

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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: [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: (212) 7 6 8 - 6 8 0 0 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., et aI., Plaintiffs, Civil No.

CV '08 - 0 50 1 - NO
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v.
HARDY MYERS, in his official capacity as ATTORNEY GENERAL OF T H E STATE OF OREGON, e t aI., Defendants.

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William Peters declares under penalties o f perjury: Background 1. I am the general manager and bookbuyer o f Old Multnomah Book Store,

Ltd d/b/a Annie Bloom's Books ("Annie Bloom's"), a plaintiff in this action. I submit this affidavit on behalf o f Annie Bloom's in support o f 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 m a i n s t r e a m b o o k s t o r e s s u c h a s A n n i e Bloom's.

2.

Annie Bloom's was established in 1978 and is located in the Multnomah

Village district o f Portland, Oregon. It is a locally-owned full-service neighborhood bookstore offering a broad-range o f works, including children's materials, contemporary fiction, and books on art, current events, parenting and entertainment. F e a r O f Prosecution U n d e r t h e A c t

3.

Annie Bloom's fears that it may be at risk o f criminal prosecution under the

Act f o r permitting minors to access o r purchase constitutionally-protected material at our bookstores o r on-line, which could be deemed "sexually explicit" o r t o appeal to a p e r s o n ' s "sexual d e s i r e s " u n d e r t h e m e a n i n g o f t h e A c t . A n n i e B l o o m ' s , h o w e v e r , d o e s not know how to determine what books m a y cross the vague lines established under the
Act.
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4.

Under the Statute, it is a crime t o furnish "sexually explicit material" t o

anyone under the age o f 13 i f the person "intentionally furnishes a child, o r intentionally 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 t h a t 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 o r otherwise provide." See ORS 167.051.

5.

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

including employees o f museums, schools, o r public libraries, are not liable. Annie Bloom's does not fall into this exception. Second, under Section 2(2)(b), Annie Bloom's would not be liable i f the sexually explicit portions o f the material furnished, o r 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. 6. Under the Statute, it is a crime if a person disseminates to anyone under

the age o f 18 a "visuat representation o r explicit verbal description o r narrative account o f sexual conduct" f o r the purpose o f "arousing o r satisfying the sexual desires o f the person or the minor. . . . " ORS 167.057 I understand this is 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

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under the Act, is vague. In addition, this section contains the same undefined and vague "incidental part" exception.

7.

My understanding is that Annie Bloom's risks criminal prosecution for

furnishing constitutionally-protected materials described above t o persons "under 13 years o f age" under ORS 167.054. While we may from time to time suggest to a youthful customer that a desired purchase may be inappropriate, it would be difficult, i f not impossible, to "card" o r determine whether a child is under 13 years of age at our bookstores. 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. See Act, §3. As discussed herein, Annie Bloom'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 3, Annie Bloom's would be committing a felony i f a 1 7 year-old purchased a book t o satisfy his o r her sexual desire o r to become sexually aroused while reading such a book -- an act that individual has a right to do. 8. Annie Bloom's has in stock over 18,000 volumes constituting over 12,000

titles. W e receive on an average over 2 5 0 new titles p e r week. Obviously we cannot read each new title to determine whether there are any sexual explicit portions and i f 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 o f the multitude o f books, magazines or other material sold a t Annie Bloom's likely t o contain sexually-related

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narrative or pictorial content, including, in some instances, nudity, that could be c o n s i d e r e d b y s o m e " s e x u a l l y e x p l i c i t " o r "visual
r~presentation[s]

o r e x p l i c i t verbal

d e s c r i p t i o n [ s ] o r n a r r a t i v e a c c o u n t [ s ] o f sexual c o n d u c t " t h a t m a y a p p e a l t o a p e r s o n ' s "sexual desires." I believe the only way f o r Annie Bloom's to ensure compliance under the Statute at o u r stores would be to eliminate such materials entirely. Developing an alternative segregated shelving arrangement at our stores f o r books that may be covered under the Statute -- i f m y staff and I even could determine that b o o k 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 d o not have. I f forced t o do so, we would have to cover up o r rope o f f many sections in my stores to insure t h a t minors would not have access. This would be extremely inconvenient t o customers, would completely alter the ambience o f the stores, and undoubtedly would have an adverse effect on sales. 9. In short, i f the Statute is n o t enjoined and Annie Bloom's 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 o r inadequate listing o f books in o u r inventory. A s importantly, adults and older teenagers will be impeded from access to constitutionally-protected materials.

Conclusion

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10.

F o r all the reasons stated above, I fear prosecution under the Statute. If

the Statute is not enjoined, Annie Bloom's 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.)

1J~
April

Ib, 2008

WILLIAM PETERS

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Exhibit A Books o f photography, including Tenneson, A Life in Photography and Gombrich, Story o f Art Maya Angelou, J K n o w W h y the Caged Bird Sings Steinbeck, Of Mice and Men Comfort, J o y o f S e x Sex education books for children and teenagers, including Hindman, A Very Touching Book, books by Robie Harris, and O u r Bodies, Ourselves from the Boston Women's Health Book Collective Blume, Forever Nabokov, Lolita]

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