Powell’s Books v. Kroger – (Ninth Circuit; No. 09-35153)

The Ninth Circuit issued its opinion in Powell’s Books et al. v Kroger et al. The court held that a pair of Oregon statutes intended to stop child sexual abuse in its early stages were facially overbroad and criminalized a substantial amount of constitutionally protected speech (slip opinion pg. 11). The statutes in question were the “furnishing” statute (ORS § 167.054), which criminalized providing children under the age of 13 with sexually explicit material, and the “luring” statute (ORS § 167.057) which criminalized providing minors under the age of 18 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. The state argued that sections 054 and 057 were aimed at the sharing of “hardcore pornography or material that is obscene to minors alone” (pg. 12).
The court decided the case on the basis of the statute’s overbreadth and applied a three part test. The first prong focused on the scope of the statute (United States v. Williams, 553 U.S. 285, 293 (2008)), the second focused on whether the statutes criminalized a “substantial amount” of expressive activity (Williams at 297). Finally the court considered whether the statute was “readily susceptible” to a limiting construction that would render it constitutional. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988).

The court found the scope of the statutes went beyond hardcore pornography. It held that the

“text and context show that the statutes cover far more than what might qualify as hardcore pornography. The statutory text makes no mention of “hardcore pornography,” but rather refers to “sexually explicit material” and a “visual representation or explicit verbal description or narrative account of sexual conduct.” (pg. 17).

Under the second prong the court used a rational basis test. It stated the framework under rational basis allows a prohibition on speech where the legislature finds “that exposure to material condemned by the statute is harmful to minors” (Ginsberg v. New York, 390 U.S. 629, 641 (1968)) even if the material is not obscene to adults (Am. Booksellers Found. v. Dean, 342 F.3d 96, 101 (2d Cir. 2003)). Otherwise speech that is neither obscene to youth nor subject to “some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975). Under this framework the court held that sections 054 and 057 swept up material that “taken as a whole” had serious “literary, artistic, political, or scientific value for minors” (pg. 23).

The court found no reasonable limiting construction. Limited by the prohibition on “insert[ing] missing terms into the statute” (Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998); see also Frink, 653 P.2d at 557-58) and against “rewrite[ing] a state law to conform it to constitutional requirements” (Am. Booksellers, 484 U.S. at 397) the court held it couldn’t save the statute. The court addressed the argument by the state that it wouldn’t bring prosecutions against individual business like Powell’s Books (pg. 26). The court held that it “may not uphold the statutes merely because the state promises to treat them as properly limited.” (pg. 26).

The case relies on a well established framework for First Amendment overbreadth analysis. The case best stands as an example for legislative clarity in crafting restrictions on speech.