Oregon lawmakers carefully crafted two laws to prevent pedophiles from using sexually explicit materials to lure and “groom” their child victims.
But a panel of three appeals court judges struck down the laws as “overbroad.”
What will the laws’ defenders — Oregon’s attorney general and 36 district attorneys — do next?
Civil liberties groups, book retailers and others who brought the lawsuit said they hope the decision last week by the 9th U.S. Circuit Court of Appeals has ended the case.
“I think the state will tell you they were not after bookstores, they were not after retailers. But that’s not the law they wrote,” said David Horowitz, executive director of Media Coalition, a First Amendment advocacy organization.
The two laws levied fines and imprisonment for people “who intentionally furnish a narrowly defined set of sexually explicit materials to children who are 12 years old or younger,” Oregon Attorney General John R. Kroger and his fellow law enforcement officials argued.
The laws were written strictly to pass muster in Oregon courts and prohibit “only deliberate sexual predation” of children “using pornographic materials,” the defendants said.
But writing for the three judges’ unanimous holding, Circuit Judge M. Margaret McKeown declared that the two laws were “overbroad” and “criminalize a substantial amount of constitutionally protected speech.”
A host of materials from “standard sexual education materials to novels for children and young adults by Judy Blume” would be implicated under the laws, and they “must be invalidated,” Judge McKeown wrote.
Tony Green, a spokesman for Mr. Kroger, said the two laws were passed overwhelmingly in the Oregon legislature and had strong support from law enforcement. However, the state had not decided whether to appeal the decision, he said Thursday.
Leaders of anti-pornography organizations were dismayed by the Powell’s Books v. Kroger ruling.
It “only further hinders legal efforts to protect children from sexual exploitation,” said Donna Rice Hughes, president of Enough Is Enough.
“Oregon took responsible steps to prohibit the use of sexually oriented or explicit speech with the intent to sexually arouse the minor or the furnisher,” she said in a statement. It is the intent that is criminalized; “the bookstore that challenged this law could not violate the law — unless they sold books for the purpose of sexually arousing children.”
“I think this is an important enough case” for the state to appeal, either to the full 9th Circuit or the U.S. Supreme Court. It “shouldn’t be left standing,” said Patrick Trueman, former chief of the Justice Department’s child exploitation and obscenity section.
“The tea party needs to turn its attention to the courts,” added Mr. Trueman. “They are daily stealing our rights. And in this case, the rights of a child are said to be less than the rights of a predator.”
The plaintiffs that argued that the laws would have a “chilling effect” on the sale, display, exhibition and dissemination of protected speech included the American Civil Liberties Union of Oregon, Powell’s Books, Annie Bloom’s Books, Dark Horse Comics, Collette’s: Good Food + Hungry Minds, Paulina Springs Books, St. Johns Booksellers, Twenty-Third Avenue Books, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Freedom to Read Foundation, the Comic Book Legal Defense Fund, Planned Parenthood Columbia Willamette, the Cascade AIDS Project, and Candace Morgan, a grandmother in Multnomah County.