9th Circuit: Oregon law protecting minors from sexually explicit materials held unconstitutional

Powell’s Books v. Kroger, No. 09-35153 (9th Cir. Sept. 20, 2010)

Before: Ferdinand F. Fernandez, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.

Excerpts from the opinion follow

McKEOWN, Circuit Judge:

We consider here the constitutionality of a pair of Oregon statutes intended to stop child sexual abuse in its early stages. The statutes broadly take aim at practices of “luring” and “grooming” that expose minors to sexually explicit materials in the hopes of lowering their inhibitions against engaging in sexual conduct. The “furnishing” statute, Oregon Revised Statutes § 167.054 (“section 054”), criminalizes providing children under the age of thirteen with sexually explicit material. The “luring” statute, § 167.057 (“section 057”), criminalizes providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct. Appellants, a broad cross-section of booksellers; non-profit literary, legal, and health organizations; and a concerned grandmother (together, “Powell’s Books”), argue that these statutes violate the First Amendment. In particular, Powell’s Books claims, among other things, that the statutes are facially overbroad and criminalize a substantial amount of constitutionally protected speech. We agree.

Although the state argues that the statutes may be construed to narrowly focus on the sharing of hardcore pornography or material that is obscene to minors alone, its position is contradicted by the statutory text. Repeated reliance on the legislature’s efforts to combat hardcore pornography cannot change the text of the statute. The legislative goal does not match the text of the statutes; the statutes’ undoing is their overbreadth. In their current form, the statutes sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume. Despite the legislature’s laudable goals, we cannot rewrite the statute to conform to constitutional limitations.