Powell's Books, Inc. et al v. Myers et al
Declaration of Michael Powell. Filed by all plaintiffs. (eo)
Powell's Books, Inc. et al v. Myers et al
P.K. Runkles-Pearson, OSB No. 061911 firstname.lastname@example.org S T O E L RIVES LLP 900 S W Fifth Avenue, Suite 2600 Portland, OR 97204 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 Michael A. Bamberger email@example.com Rachel G. Balaban firstname.lastname@example.org SONNENSCHEIN NATH & ROSENTHAL LLP 1221 Avenue o f the Americas, 24th Floor New York, NY 10020 Telephone: (212) 768-6700 Facsimile: ( 2 1 2 ) 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 DISTRICT C O U R T DISTRICT OF OREGON
POWELL'S BOOKS, INC., e t a t , Plaintiffs,
CV '08-0 501. -
DECLARATION OF MICHAEL POWELL
HARDY MYERS, in his official capacity as ATTORNEY GENERAL OF THE STATE OF OREGON, et a t , Defendants.
Michael Powell, declares under penalties o f perjury: Background 1. I am the o w n e r o f Powell's Book's, Inc. ("Powell's"), a plaintiff in this
action. I submit this affidavit on behalf o f Powell's in support o f plaintiffs' motion f o r a preliminary injunction to enjoin the State from enforcing D R S 167.051 to 167.057 (collectively referred to as the "Statute"), an unconstitutional censorship law which will apply to mainstream book stores such as Powell's.
Powell's is one o f the oldest and largest bookstores in Oregon, started in
1971. There are six locations in the Portland metropolitan area, f o u r full-service bookstores (Powell's City o f Books, Powell's a t C e d a r Hills Crossing, Powell's on Hawthorne, and Powell's a t PDX) and two specialty stores (Powell's Technical Books and Powell's Books f o r Home and Garden). The f o u r general retail bookstores primarily carry, and display f o r purchase, books and magazines and caters t o persons o f all ages. P o w e l l ' s a l s o has a w e b s i t e a t w w w . p o w e l l s . c o m . s e r v i n g c u s t o m e r s w o r l d w i d e . T h e books are organized by category and in some instances, by further sub-categories, f o r ease o f reference. For example, there is a "photography" category broken into several sub-categories, including "erotica." There also is a "graphic novels" category that includes, among others, an "erotica" sub-category containing hundreds o f different books. In addition, the website includes a category entitled "gay & lesbian studies," that includes a "sexuality and wellness" sub-category. F e a r O f Prosecution U n d e r t h e S t a t u t e
Powell's fears that it may be at risk o f criminal prosecution under the
S t a t u t e f o r p e r m i t t i n g minors 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 m a t e r i a l a t o u r bookstores o r on-line, which could be deemed "sexually explicit" o r t o appeal to a person's "sexual desires" under the meaning o f the Statute. Powell's, however, does n o t know how t o determine what books may cross the vague lines established under the Statute.
Under the Statute, it is a crime t o furnish "sexually explicit material" to
anyone u n d e r 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 that which contains visual images -- including paintings and drawings -- o f masturbation, intercourse o r genital/oral/anal contact between people and animals. See ORS 167.051. "[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,
i n c l u d i n g e m p l o y e e s o f m u s e u m s , schools, o r p u b l i c l i b r a r i e s , a r e n o t l i a b l e . P o w e l l ' s does not fall into this exception. Second, Powell's would not be liable i f the sexually explicit portions o f the material furnished, o r permitted t o 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.
U n d e r t h e Statute, i t i s a crime i f a person d i s s e m i n a t e s t o a n y o n e u n d e r
the age o f 18 a "visual representation o r explicit verbal description o r narrative account o f s e x u a l c o n d u c t " f o r t h e p u r p o s e o f "arousing o r s a t i s f y i n g t h e s e x u a l d e s i r e s o f t h e person o r the minor . . . " D R S 167.057. I understand this is a very broad provision encompassing material with textual descriptions, as well as visual depictions. I also believe t h a t the phrase "arousing o r satisfying t h e sexual desires," which is undefined under the Statute, is vague. In addition, this section contains the same undefined and vague "incidental part" exception.
M y understanding is that Powell's risks criminal prosecution f o r fu rnishing
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 m a t e r i a l s d e s c r i b e d a b o v e t o p e r s o n s " u n d e r 1 3 y e a r s o f age" u n d e r ORS 167.054. While we may from time to time suggest to a youthful customer t h a t a desired purchase m a y be inappropriate, it would b e difficult, i f not impossible, to "card" o r determine whether a child is under 13 years o f age a t o u r bookstores. Under ORS 167.057, furnishing a 17 year-old minor with such material is a crime i f furnished f o r t h e purpose o f satisfying the sexual desire o f the 17-year old. As discussed above, Powell'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, Powell's would be committing a felony i f a 17 year-old purchased a book to 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 r i g h t t o do.
Powell's has in stock o v e r two million volumes constituting o v e r one million
titles. W e receive on an average o v e r 5,000 new titles p e r week. Obviously w e cannot
read each new title to determine w h e t h e r there are any sexual explicit portions and if so whether such portions "serve some purpose o t h e r than titillation" (even i f I knew what t h a t meant). On Exhibit A are listed a f e w examples o f the multitude o f books, magazines o r o t h e r material sold a t Powell's likely t o contain sexually-related narrative o r pictorial content, including, in s o m e 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 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 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 d e s i r e s . " believe t h e o n l y w a y f o r P o w e l l ' 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 A c t a t o u r stores would be to eliminate those materials entirely. Developing an alternative segregated s h e l v i n g a r r a n g e m e n t a t o u r s t o r e s f o r b o o k s t h a t m a y b e c o v e r e d u n d e r t h e A c t -- i f m y s t a f f 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 w e d o not have. I f forced to d o so, we would have t o cover up o r rope o f f m a n y sections in m y stores to insure that 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 Powell'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 a p p e a r 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 10. For all the reasons stated above, I fear prosecution under the Statute. I f
the Statute is not enjoined, Powell's will be forced either t o self-censor o u r books and magazines t o a great degree o r risk criminal liability. (The only reason we have not selfcensored to date is that we have been advised that the Act is. unconstitutional.)
Date: A p r i l / y , , ' 2 0 0 B
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Exhibit A Maya Angelou, I K n o w W h y the C a g e d B i r d S i n g s Steinbeck, O f M i c e a n d M e n Romance novels, including those by Nan Ryan & Linda Howard G r a p h i c novels, including t h o s e b y Laura C a r b o n i B o o k s o f P h o t o g r a p h y , i n c l u d i n g N u d e P h o t o g r a p h y : M a s t e r p i e c e s f r o m t h e p a s t 150 years Comfort, J o y o f S e x Blume, F o r e v e r S e x e d u c a t i o n b o o k s f o r teenagers, i n c l u d i n g C h a n g i n g B o d i e s . C h a n g i n g Lives, by Ruth Bell Nabokov, L o l i t a
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