American Booksellers v. James Webb

giа signed into law Act No. 1495, 1496-1501, Ga.Laws which was to KRAVITCH, Before Judge, Circuit take July 1, effect on 1984. Section 3 of HILL, Senior *, Circuit Judge and Act, which is codified at O.C.G.A. POINTER, Chief Judge**. District 16-12-102 to (1988),2 §§ 16-12-104 regu- * 34-2(b), See Rule Rules of the U.S. Court of opinion this to “adults’ access” as a shorthand Appeals for the Eleventh Circuit. expression denoting all of the interests affected ** by Pointer, Jr., statute. Sam Honorable C. Chief U.S. Dis- Judge trict for the Northern District of Ala- bama, sitting by designation. statutory provisions ap- relevant to peal, 16-12-104, O.C.G.A. §§ 16-12-102 to implicates are ban right Appendix set forth opinion. to this of adults to have access by to material Amendment, the First but also the interests of Sections 1 and 2 of the Act amended O.C.G.A. authors, publishers, booksellers, 16-6-5, and others af- §§ 16-6-4 and which relate to the crimi- regulating fected a law of, consumer access to nal respectively, sexual offenses moles- child books other material covered the statute. enticing tation and a child pur- for indecent For the brevity, sake of we throughout will refer poses. gen- adaptation of 1278-80—an display of sexual- the distribution lates obscen- determining for adult eral standard “harmful deemed materials explicit ly standards “prevailing ity to reflect provided definition under minors” re- a whole with community as adult 16-12-102. mi- is suitable spect to what analyze chal useful may be It (quoting S.Ct. at Id. nors.” group aas statutory provisions lenged 484-h).4 years after Five Law N.Y.Penal (1) the components: distinct five definition Ginsberg, it revised decided Court materi type 16-12-102 in section obscenity in determining adult standard sub minors” “harmful deemed als 15, 93 California, v. Miller in sec set forth proscriptions the

jected tо 16- (1973). Section 419 2607, 37 L.Ed.2d 16- in section 16-12-103; (2) the ban de- test for Ginsberg the modifies 12-102 case, (in this 12-103(a) on distribution the. in to minors termining material obscene any loan) of a minor to sale the three-part test articulated light of the (3) minors”; in section the ban to “harmful obscenity.5 determining adult for Miller minor to a 16-12-103(b) the exhibition the “knowingly” violate must An accused show, pre or other picture, any motion of O.C. See proscriptions. (4) minors”; various statute’s to is “harmful sentation 16- 16-12-103(a), (b), (e), and and 16-12-103(e) on G.A. §§ in section prohibition the 16-12-103(c) makes also 12-102(2). Section minors places where public display in the repre- falsely to for minor it unlawful “harm that is of material present may be age or years of is 18 he or she sent (5) in 16-12- minors”; section and to ful any materi- procure intent to the older with coverage under from exemption the by the statute. al covered state the certain libraries statute of the American Booksellers Georgia. See of (N.D. 677, 687 Webb, F.Supp. Ass’n., 590 v. History B. Procedural and order abstain Ga.1984)(district court enjoin. relief) (hereinafter 1. The suit injunctive grant interim component five (describing I”) the “Webb associa- are various Plaintiff-appellees State, statute); Hunter the parts of booksellers, periodical publishers, tions (1987) 571-72, 361 S.E.2d Ga. bookstores, and retail- distributors, college (same). and general bookstores ers, as two as well day April On in an author.6 to minors” of “harmful definition law, plaintiffs into signed the bill Governor a New derives 16-12-102 section declaratory seeking complaint up- filed their Supreme Court statute York defendant-appel- relief. injunctive York, and Ginsberg v. New held solicitors, sher- Georgia are various (1968).3 lants L.Ed.2d 195 629, 88 S.Ct. authority who have iffs, police officials and use of a “variable approved Ginsberg law.7 636-39, to enforce standard,” id. see obscenity changes context, discussion a detailed 5. For more as used noted Except where Miller, wrought Act,” Ginsberg formulation to the opinion terms "the hereinafter 18. see footnote statute," statutory provisions" will "the "the 16-12-104. 16-12-102 to sections refer I, n. 6. See Webb Ginsberg upheld in statute 3. The New York standing. plaintiffs’ a discussion minors sale distribution banned to minors." of material "harmful Georgia is not named Attorney General 7. The copy defendant, was served with but aas to mi- not "harmful general, In pursuant to O.C.G.A. proceedings the 9-4-7(c) Georgia unless under the nors” special attor- assistant retained whole, prurient inter- to the appeals as a taken for most counsel as lead ney general act minors, (2) to stan- patently offensive est /, F.Supp. at 681 See Webb regard the defendants. community with adult in the dards that all state determined district court minors, 2. The n. taken is suitable what by the out- are bound officials law enforcement whole, O.C.G.A. serious value. lacks case. Id. of this come 16-12-102(1). § Plaintiffs alleged statutory that the pro- 693-94. In the interest judicial econo- question visions in First, violated the Fifth my, the suggested that Appellants and Fourteenth Amendments to the United also seek a construction of the challenged Constitution, States and 42 U.S.C. 1983.8 provisions in Georgia courts. Plaintiffs alleged also legislature’s appealed Plaintiffs court, to this which choice to single include in a pro- enactment granted parties’ joint present motion to visions relating to against sеxual offenses questions two certified the Georgia Su- (Sections children I Act, and II of the see preme Court. American Booksellers 2), together footnote provisions regu- Webb, (11th Ass’n 744 F.2d Cir.1984). lating material (Sec- “harmful to minors” Act), tion III of the III, violated Article The Georgia Supreme Court answered V, Section Paragraph III of Georgia question the first by holding that the Act against Constitution—the rule referring to did not violate the subject “one matter” subject more than one matter in the same provision of Constitution; but bill. the court declined to construe O.C.G.A. Since the Act was not scheduled to be- 16-12-102 to §§ 16-12-104 the absence come 1, 1984, effective until July facts, see O.C. enforcement finding instead l-3-4(a) G.A. (governing date the challenge effective was anticipatory. American legislative acts), the district court consol- Webb, Booksellers Ass’n v. 399, 254 Ga. the hearing plaintiffs idated on motion for 329 S.E.2d 495 a preliminary injunction with a trial on the

merits May 1, on 31-June 1984. 3. The district decision court’s on the merits.

2. Pullman abstention and the certifi- cation questions to the Georgia September 26, On 1986, on the basis of Supreme Court. the factual legal evidence and arguments By presented 27, 1984, trial, order dated June the the district district court de- granted court provision defendant’s clared the display motion to library ab- ex- stain emption under Railroad Comm’n v. the statute Texas unconstitutional. Co., II, Pullman 312 U.S. Webb F.Supp. 61 S.Ct. 643 85 at 1556. The court (1941), L.Ed. 971 until ruled on February 25, 1987, courts that since the decided whether the Act library exemption violated the “one is not severable from subject provision matter” definition, of the Georgia distribution, exhibition, and dis- Constitution. The court did grant play provisions, however the entire statute is invalid. temporary plaintiffs relief enjoining American Webb, Booksellers Ass’n display I, ban. Webb F.Supp. F.Supp. (N.D.Ga.1987).9 The court complaint 8. alleged Count I of the pendency the bans the Supreme of a case United States display distribution are unconstitutional- involving Virgi- Court similar issues. ly apply overbroad they because to materials Ass’n, nia American Booksellers that are not obscene as to minors. II Count (certifying 98 L.Ed.2d 782 alleged display provision that the adults' violates questions Virginia Supreme Court); right First Amendment of access to materials L.Ed.2d 243 that are not obscene as to them. Count III (vacating remanding earlier decision and alleged that the statute effects unconstitu- case to the Fourth Circuit for reconsideration in prior tional speech. restraint on Count IV al- light received). of the answers See also Ameri- leged that the definition of "harmful to minors” Virginia, can Booksellers Ass’n v. 882 F.2d 125 contained in unconstitutionally the statute is (4th Cir.1989) (upholding validity facial of dis- vague. alleged exemption V Count play regulation interpreted by Virginia as Su- Equal libraries violates the Protection Clause. Court). preme alleged Count VI par- violates Unfortunately, the final Fourth deci- Circuit right ent’s raise his or her child from free provide sion does guidance. us substantial state interference. Count VII is the state law page opinion analysis only The 1.5 aids our I, count in the described text below. See Webb part. While aids our construction at 682. Georgia (see phrase statute’s “harmful minors” Proceedings stayed 1505), in this court were page opinion below at does not February until December due to analysis compliance strategies aid our of the readers, under- could potential youngest in- portion of its stayed that nevertheless appreciate. Id. stand and definition, distribu- involving the

junction provisions of stat- tion, exhibition construe declined to The court appeal. this pending person ute 16-12-103(e)’s requirement that a exhibit, expose, “knowingly ... must findings a. fact public any ... public ... at display in mi- by minors or where frequented place “that in-store found court district part of the invited are or nors is the cornerstone of books subject to the [any material general public: marketing practic- industry’s [bookselling] determining the than Rather statute].” are advertised Relatively books few es. strategy ac- compliance least burdensome result, media, and, as a through mass and then language tually mandated impulsive sales are majority of the vast the court constitutionality, evaluating its display.” by Webb prompted selections in an adults- displaying held that also II, F.Supp. at 1549. minors, or open to of a store only section approximately fact that matter of found racks covering books with blinder any given print 500,000 are books save dis- adults-only tags, “would not published are 50,000 books new time and currently drafted” as it play provision therefore, “cannot booksellers every year; interpreta- since, the court’s earlier given percent- than a minimal more hope to read of works covered the vast amount tion of Id. at they stock.” age of books pro- strategies “would these by the Id. at 1554. chilling effect.” duce a law b. conclusions of that the stat- Similarly, found the court interpreta- legal various made court The time, place, and a reasonable was not ute the coverage of stat- regarding the tions (1) “the methods since manner restriction definition and minors” ute’s “harmful to of in the wake the display left available of display. Al- the ban reach of thus the interests the adequately serve Act do findings were noted of its though several (2) failed speech,” and defendants of free fact,” id. at “findings see of that “the lim- evidence sufficient to submit “the district court’s agree parties the with materi- may have ited minor contact scope of to the the determinations produces a in displayed a bookstore als minors,’ specific its ‘harmful to phrase speech]” that [secondary effect of negative are mixed particular works” applicability regulate. at Id. the state Appellees’ Brief fact. questions of law and however, noted, “the chill- court at Brief ll.10 Appellants’ at 11-12. See compliance to the attendant effect significant “a found court The district defendants suggested the methods in- average bookstore’s of an percentage if the did not acceptable might be display” from barred ventory would be “ of literature” and “classic works apply to ‘that the the id. reading adult amount of predominant the reading of all adult predominate amount fact, In as the court material. Id. nonfiction, argu- could material, fiction and applies only stated, “a statute that of the terms encompassed within ably be ” ap- minors inappropriate for to materials (quoting witness Id. at [the Act].’ majority might well age of proaching the these observa- Florence). made The court Id. at a constitutional attack.” survive interpretation that itsof tions on the basis n. 17. at 1554 also id. 1556. See the “harmful of prong the “serious value” the statu- the found that Finally, evaluated must be definition to minors” to libraries is tory exemption provided minors,” including the light what “most of Carson, 754 F.2d 16-12-103(e) (see also McMullen 10. below by section mandated findings Cir.1985). (“In reviewing text). (11th accompanying Further- 31 and footnote more, cases, this Court must vagueness fact First Amendment issue opinion decided ‘independent whole examination an make record,' rela- overbreadth not delve into but did ‘clearly solely relying on the rather than vagueness and tionship over- between omitted). (citations standard.”) doctrines, IV. erroneous’ do Part as we breadth infringing upon classification a fundamen- constitutionality ban, of the display it is right. tal Since the strict scrutiny test is important to articulate general inter- applicable the Equal under Protection pretive principles applicable in a facial chal- Clause to classifications affecting the exer- lenge to a statute affecting speech. Out- rights, cise govern- fundamental and the side of the First context, Amendment ment failed to library demonstrate that the Supreme Court has noted the difficulties exemption promoted compelling govern- inherent in a facial challenge: mental through interest a narrowly drawn facial challenge legislative to a classification, “[a] the court found exemp- is, course, Act the most unconstitutional.11 difficult chal- lenge to successfully, mount since the Appeal C. Issues on challenger must establish that no set of appeal requires This us first to determine circumstances exist under which the Act whether reach of the to mi- “harmful would be valid. The fact that chal- [the nors” definition in section 16-12-102 must lenged might operate unconstitu- statute] perspective be evaluated “any tionally under some set of conceivable minor,” reasonable including an older mi- circumstances is insufficient to render it nor, or whether the applied tests must be wholly invalid....” light of the sensibilities and literary com- Salerno, United States v. prehension minors, of “most” the “aver- age,” or even the youngest L.Ed.2d 697 minor who might seek access books or other materi- explicit Second, als sexual conduct. recognized Court has that when ov- we must protected evaluate burden on erly broad statutory language seems to light our interpretation of sweep protected First expres- Amendment the amount of material covered and directly sion into the scope regulation of a

methods of compliance actually mandated affecting speech, indirectly places by the display. ban on Finally, we will undue burden on such activity, appropriate decide the standard review expression free can be chilled in the for the even by classification drawn the legislature regarding of the may specific application who absence statute’s distribute and to minors material covered speech. reason, For this the Act, and who not. recognized Court has the so-called over- breadth doctrine in the limited context

DISCUSSION First challenges. Amendment facial II. A REVIEWING FIRST Martin, 253, AMEND- Schall v. 467 U.S. 104 S.Ct.

MENT REGULATION FOR 2403, (1984). 81 207 L.Ed.2d Since the FACIAL VALIDITY requires overbreadth doctrine in effect considering Before specific potential courts to test or evaluate reach of a standards which statute, we must measure the circumstances, conceivable sets of 26, 1986, September 11. The district court’s order Since it display provision concluded only plaintiffs’ challenges addressed to the overbroad, dis substantially was the district court play library exemption provisions and plaintiffs’ declined to reach contention that the statute. display component unconstitutionally vague. is The court on relied the reasons stated in its Appellees argued appeal have not on that 27, 1984, order, I, June F.Supp. see Webb 590 provisions question provide fail to "reject[ plaintiffs’ ] contentions with required fair notice under the Due Process definition, distribution, respect to the and exhi- Clause as to what constitutes a offense criminal II, components bition of the Act.” Webb 643 Act; therefore, under we need not address Appellees at 1551 n. 10. not ar- have Appellees argued, claim that either. have how- gued appeal on that district was incor- ever, that booksellers face an intolerable First reject alleged rect to ities; thus, these constitutional infirm- determining Amendment burden mate- which arguments we do address these are rials tory to minors” "harmful under the statu- grounds as alternative upholding the district definition We 16-12-102. ad- court’s determination that the Act unconstitu- pp. dress that claim at 1505-1506. tional. 1500 First Amend- long been a tenet of on It burdens has direct and indirect possible a facial determining ment law that has noted Supreme Court speech,12“[t]he statute, “readily if it be ‘strong challenge to a doctrine the overbreadth narrowing construction susceptible” to a employed should be medicine’ constitutional, it will it last make hesitation, “only as a would and then ‘with ’ ” City Jack- upheld. Erznoznik v. v. Booksellers Upper Midwest resort.” of 2268, 205, sonville, 45 422 95 S.Ct. 1391 U.S. Minneapolis, 780 F.2d City of (1975); v. Okla- 125 Broadrick v. Fer- L.Ed.2d Cir.1986) (quoting York

(8th New 3348, 3361, homa, 93 S.Ct. 413 U.S. ber, U.S. applica- (1973). key (1982) (in quoting L.Ed.2d 830 turn 73 L.Ed.2d 601, 613, principle is that the this Oklahoma, tion of 413 U.S. Broadrick v. limita- “readily susceptible” to 2908, 2916-17, must be 37 L.Ed.2d 93 S.Ct. law to We will not rewrite state tion. (1973)). require- it to constitutional conform not direct regulation is When ments. expression, or at origin of ed at the Ass’n, American Booksellers Virginia v. (in case, person right of a ultimate 636, 644-45, 383, 397, 108 S.Ct. protected ex adult) procure present Thus, (1988).13 must con- we L.Ed.2d 782 “mere upon impinge pression, it does range potential allegations of the sider the rather, regulates the method speech”; by the materials covered of, expression. the form presenting, or imposed adults’ access possible burdens on plus “conduct ‍‌‌​‌​​​​​​​‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​‌​​​‌​‌​​‌‌‌​‍display affect Regulations on measures, by mandatory compliance Booksellers, 780 speech.” Upper Midwest (1) construe obligations to light of our twin Casado, 1391-92; News Co. F.2d at M.S. rewriting narrowly, without the statute Cir.1983); 1281, 1289(10th Ameri 721 F.2d its terms. Rendell, 332 Pa. Ass’n can Booksellers A.2d Super. FIRST AMENDMENT III. involved, speech is plus conduct “[W]hen STANDARDS and ‘sub must be ‘real’ overbreadth bedrock decline to restate the We regulаtion’s] in relation to stantial’ [the First general principles of case law [regu sweep’ before ‘plainly legitimate guide our jurisprudence which Amendment face.” on its invalidated should be lation] analysis. are content to note We Booksellers, F.2d at Upper Midwest sur restrictions content-based Ferber, (quoting 1391-92 only under ex scrutiny vive constitutional 3361-62). circumstances; (2) material traordinary but appropriate under the recently judged stat “obscene” Supreme Court As protected is not challenge standard to a constitutional considering a facial ed when Amendment; (3) indirect burdens display of mate First regulation on Virginia an effort placed protected an courts have on juveniles,” “harmful to rials regulate obscenity supported must be challenged stat to construe obligation not important interests and should be state narrowly: ute omitted). (citation Estates, The Court Flipside, Inc. v. 109 L.Ed.2d 98 Village Hoffman more, 489, 6, nudity, "depictions Estates, Inc., without n. 102 noted U.S. 494 455 Hoffman 6, (1982) expression.” 1186, protected S.Ct. 110 362 constitute n. 71 L.Ed.2d 1191 S.Ct. 18, Ferber, Bullitt, (citing n. 102 U.S. at 765 U.S. 84 1698 458 Bagget 377 (quoting v. (in 1322-23, (1964); 18). 1316, given the lan- And broad 377 S.Ct. 3359 n. 12 L.Ed.2d S.Ct. 513, Randall, imagination great guage, feat of Speiser 357 U.S. “it takes no quoting turn 1342, (1958)). 1332, 526, such ordinance situations in which 2 L.Ed.2d envision S.Ct. unconstitutionally applied.” 110 S.Ct. might be However, Supreme term, upheld at 1701. since Ohio Supreme Court last 13. In its requiring exhi- “a lewd possession the statute as Court read prohibited the statute which genitals,” graphic on minors, subject focus bition or ... photographs to sever- "nude" against an over- upheld the statute provisions. the Court "proper purposes” exemptions and al — U.S.-, 1691, challenge. Ohio, breadth Osbоrne unnecessarily burdensome; the Communications California, Inc. v. state’s interest in protecting youth justi- its FCC, 492 U.S. S.Ct. 2838- fies a limited burden on expression. free 39, 106 L.Ed.2d 93 (invalidating total II, See generally Webb 643 F.Supp. at ban on adult access to telephone indecent (and 1551-52 therein). cases cited messages but intimating that a statute re stricting We access begin through analysis our certain with the Su means preme would be Court's narrowly decision in Ginsberg tailored and that a constitu tional); state deny Butler, minors access to U.S. at materials 77 S.Ct. at acceptable for adults 525-26 but (invalidating obscene mi statute banning read nors. While the statute materials Ginsberg inappropriate children, banned the sale or but distribution implying of this that a statute “reasonably material to minors and did implicate not restricted to the evil with which it is said to First Amendment rights of adults, it deal” is would be constitutional). clear reading our of Ginsberg that a Several courts evaluating variously de- may, state an impermissible absent burden fined display regulations such as the in- adults, deny minors all access any stant one emphasized have that the state’s to materials obscene as to them. Mi form legitimate interest in protecting young its nors right have no to view way must be against balanced right consume this material —even if they do not adults to have access material. purchase or otherwise take control of it.14 See, e.g., Upper Booksellers, Midwest Ginsberg did not address diffi 1394-95; F.2d at II,Webb 643 F.Supp. at culties which arise when government’s 1552. On hand, the one a state’s interest in protection of (even minors burdens indirect protecting children from expоsure to mate- ly) adults’ access to material protected as rial obscene as to minors is a substantial to them. We must look to other case law and important state Ferber, interest. general principles of First Amendment U.S. at 102 S.Ct. at (1982); 3354-55 jurisprudence to discern the constitutional Ginsberg, 390 639-42, U.S. at 88 S.Ct. at parameters of government’s power un 1280-82. On hand, the other the indirect der these First, circumstances. clear burden on adults’ First right Amendment that a state may prohibit an adult’s to have access to material not obscene for access to material obscene for mi adults must be narrowly drawn. Up- nors but not for adults. As the Supreme per Booksellers, Midwest 780 F.2d at 1396- Court recently reiterated, the First Amend 97 (regulation must open leave adequate ment forbids reducing the population adult channels, alternative must not restrict ex- reading and viewing only works suitable pression source, at its and must impose for children. Virginia v. American Book “significant” restrictions on access); adult ’n, sellers Ass 484 U.S. at 108 S.Ct. at Co., M.S. News (restriction F.2d at 1288 640-41 (citing Bolger v. Youngs Drug on adults’ access to material that is not Products Corp., 60, 73-74, obscene as to them must reasonable); 2875, 2883-84, (1983); 77 L.Ed.2d 469 Rendell, 332 Pa.Super. 481 A.2d at Butler v. Michigan, (“incidental 941 restrictions on First 524, 525-26, 77 S.Ct. 1 (1957)). L.Ed.2d 412 Amendment freedoms must be limited to Even where statutes have not been upheld, those essential to the furtherance of that however, the Supreme Court has recog interest”) (citation omitted). nized that some limitation on the access of adults protected to material for them but A number of courts have evaluated vari- harmful to minors permissible. is ously Sable defined restrictions on the display of The New upheld Yоrk Ginsberg statute in right that while minors have no purchase to beyond extended the objectionable sale of such them, unprotected they to nevertheless materials to its presentation exhibition or to right have a to read or otherwise consume the 484-h, minors. N.Y.Penal Law § construed taking permanent material without control over Ginsberg, 647, in 390 U.S. at 88 S.Ct. at 1284-85. it as property. their own quite It would be anomalous for a court find to

1502 phrase that analysis” light of of “overbreadth minors” in to “harmful —a the loosely refer to to often use a reason- courts standards for constitutional the sweep protected to of a statute regulation. propensity manner time, place, able unnecessarily or activity purview, its in into manner affect the restrictions Display the activity through protected to burden presented or ac- may be speech which unpro- on operation its effects of pure regulation of collateral cessed, to a in contrast however, are, sever- activity. There tected outright ban on or an its at source speech in alleged types of overbreadth al distinct adults.15 accessibility to its require separate case, each of which in relevant no distinction We see analysis. stan the constitutional between this case time, place, and man ato applicable dards ANALYSIS IV. OVERBREADTH balancing de restriction,16 test and the ner Protected Activ- Regulation speech A. Direct regulation of a for above scribed ity. indirectly minors that to unprotected In as to adults. protected speech affeсts most “legislative overkill” type of The either display ban under evaluating “overbreadth” commonly with associated in this inquiry, at least test, the crucial scope define lawmakers results when on adults’ the restriction case, is whether unprotected ex- to reach both of a statute unnecessarily speech is protected access as, potentially, at least pression as well or, stated dif “significant,” burdensome Ameri- example, Por protected speech. adult modes of alternate ferently, whether McAuliffe, Booksellers Ass’n 533 can unduly restricted. are access court (N.D.Ga.1981), struck F.Supp. 50 ban- a statute as overbroad Georgia’s restric- down that Appellees contend inter of, to minors ning distribution “harmful of material display on tion alia, partially “picture of denud- many a nude activity in burdens minors” in a presented manner figures posed or those ed court considered ways. The district or to passion lust or or arouse provoke general rubric under potential burdens "sec- neighborhood's environment. The pp. at a the text above on discussed The cases protected for adults ondary effects” of materials review regard to standards 1499-1500 impact of from the to minors stem regu- obscene challenges but that hold for facial overbreadth materials minors. access to such only in-store display manner affect lations defendants court district found Upper presented. Mid- be which "secondary ef- of such 1391-92; presented no evidence Booksellers, M.S. F.2d 780 west court reasoned from in-store access. 1289; Rendеll, fects” Co., 332 Pa.Su- 721 News F.2d Supreme re- Ginsberg Court while in A.2d at 941. per. at legislative for the quired basis rational right purchase that an unlimited conclusion time, upheld as a reasonable to be 16. In order sexually explicit would be materials view restriction, must place, and manner minors, right of adults since harmful matter, (2) subject content not be based on implicated, un- is access to such material have drawn, gov- significant narrowly further evidentiary higher Ginsberg, a standard like interest, (4) allow sufficient ernmental Playtime required Theatres. under is City expression. Renton alternative forms agree Upper Midwest with the Booksellers We Inc., Theatres, S.Ct. U.S. Playtime required empirical finding data court Time, Inc., (1986); Regan v. L.Ed.2d 29 regula- zoning commercial intricate to sustain L.Ed.2d 487 U.S. 468 (1984); necessary type to sustain tions legislation Community Creative Non- Clark v. this case. 780 F.2d at issue in Violence, Upper ob- Midwest court 11. As the n. L.Ed.2d served, [legally relevant] distinc- see no "[w]e Play- acknowledged, exposure finding "the virtue between the district As proscribed a restriction materials harmful Court concluded Theatres time proscribed finding with the the sale of it is if concerned and that minors is content-neutral ..., only A court need speech issue Id. ‘secondary the at is harmful.” of material effects’ type the eradicating particular "it not irrational for a of was determine than with rather fleeting] (citations exposure legislature to find F.Supp. [even omit- at 1554 speech.” 643 is statute harmful regulated the "secondary material condemned ted). of the effects" The 641, S.Ct. Ginsberg, U.S. at nega- 390 88 minors.” to the Playtime related Theatres in 1281. "regulated uses” at impact theaters tive adult

1503 exploit face, sex.” On its the minors) statute cov- does not scope restrict the of mate ered material that would not be obscene as rials that a state regulate. See Amer Ginsberg standard; to minors under the ican Booksellers Ass’n v. Virginia, 882 thus, it directly regulated protect- material 125, 127 (4th F.2d n. 2 Cir.1989); M.S. News ed even minors and was therefore Co., 721 F.2d at 1286-87. Both the Geor Id. at 52-53. overbroad. gia law at issue in this case and the New The definition of material tar approved York statute in Ginsberg “adapt geted in Georgia Code section 16-12-102 the ed obscenity current test it so could be suffers “legislative from no overkill”; such used to determine whether material is employs narrowly a crafted Gins minors,” id. at harmful (com n. 4 1286 berg-type adaptation of the current defini paring the N.Y. statute in Ginsberg awith tion of obscenity announced in Miller adult Wichita, Kansas ordinance derived from California, v. 15, 24, 413 U.S. 93 S.Ct. Miller See American Booksel the test). 2607, 2614-15, (1973). L.Ed.2d 419 Al lers Ass’n v. Virginia, 882 F.2d at 127. though Supreme the Court has not decided Nothing in Miller casts doubt on the what effect Miller will have on the Gins constitutional viability of a variable stan berg formulation of a obscenity variable dard of standard,17 obscenity for join we minors upon other based in a courts finding post-Ginsberg the Ginsberg-like adaptation definition of adult the current Su obscenity announced Miller (as preme modified Court standard for determining for determining that which is obscene to adult obscenity.18 City Jacksonville, Erznoznik 422 U.S. articulated in Miller. A entirely state is free 205, 10, 2268, 10, 213 n. 95 S.Ct. 2275 n. adopt obscenity a test for that is narrower than L.Ed.2d 125 current First jurisprudence Amendment re- quires. (1) 18. A comparison stаndard, Ginsberg the reading Our prong the second of the test (2) (3) the Miller standard and the standard Memoirs, 418, articulated in see 383 U.S. at articulated in O.C.G.A. 16-12-102 discloses 977, at Ginsberg, 633, S.Ct. and in see 390 U.S. at that Miller does not validity affect the of the S.Ct. at satisfies us that the Mem- definition Georgia utilized in the and oirs-Ginsberg test for whether the general is material modifies the prong third of the "patently offensive" specifically refers Ginsberg to the ob- standard obscenity. jectionable portion question of the work in prongs The first of all three tests are essential- not, indeed, does logically, cannot ly evaluated the Compare same. Memoirs v. Massachu- is, the basis of the work as a setts, 413, whole. That 418, 383 U.S. 86 S.Ct. sexually whether explicit portion (1966) of the L.Ed.2d 1 berg, (plurality opinion) and Gins- offensive," "patently work is necessary 633, con- 390 U.S. at —a 88 S.Ct. at 1276-77 with dition that Miller, is 24, distinct other U.S. at two 93 S.Ct. at 2614-15 and prongs depend upon not any way 16-12-102(1)(A). O.C.G.A. or in —does relate to the “work as a whole” or suggested The to the district court unob- that "[t]he Miller jectionable portions obscenity allegedly incorporate test does obscene 'taken Thus, work. the absence a whole’ of the "as standard a part into the whole” second language in the test Miller test [articulated in does Ginsberg]." Memoirs and work I, change prong in the Webb second obscenity of the at 688. ques- The second test. tion in the Memoirs-Ginsberg test is whether the apparent “patently is confusion stems prevailing from the offensive to fact particular standards in the community articulation of adult the second as a test whole respect in the Ginsberg to what issue suitable asks matеrial for whether Ginsberg, minors.” "patently was prevail- 390 U.S. at offensive Memoirs, 1276-77. standards in the adult U.S. at 86 S.Ct. community as Cf. (adult standard). at 977 Similarly, whole." 390 U.S. at the second 88 S.Ct. at 1276-77. obscenity plurality test for adult opinion in Miller Memoirs "whether makes no describes, depicts work patently mention requirement. of the “as a offen- whole” way, sive specifically sexual conduct 383 U.S. at defined 86 S.Ct. at 977. It is our view applicable Miller, phrase ‍‌‌​‌​​​​​​​‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​‌​​​‌​‌​​‌‌‌​‍state law.” merely "as a whole” modifies 93 S.Ct. at 16-12-102(1)(B) "community” Section expresses re- the idea articulated Ginsberg tains the case, language "as a Illinois, whole” in Memoirs and Pope a later therefore, prong; second assuming even arguen- (1987), 95 L.Ed.2d 439 standard, do that Miller relaxed the that the first and pre- second tests under definition and those like it are (i.e.. Miller) either post-Ginsberg com- definition of obsceni- pletely Miller, consistent with ty narrower judged must be with reference to the "aver- than prong the second age” more recent test member community, of the “whole” where- "majority ap- Appellees mined not with reference to maintain that section 16- proval," any overly but on the basis of whether 12-402's definition is broad because person it does not accommodate the differences reasonable would find serious val- community whole, younger ue-even if the as a between older and minors in matu "average" community, rity capacity comprehend member of the levels and liter 500, ary According appellees, would not. 481 U.S. at 107 S.Ct. at themes. 1920-21. See the discussion in footnote 18 single use of a standard for all minors Pope denies older minors aсcess to materials that above. echoes the fundamental idea that, although People" literary "We the are sover- have serious value for them.19 eign Constitution, under the the Founders disagree, We and find that Rights added the Bill of against as a bulwark interpret courts would section 16-12-102 in "tyranny majority." If, light Pope Illinois, 497, prongs like the other two of the test for 1918, (1987). Pope, 95 L.Ed.2d 439 In obscenity, judge we "serious value" accord- Supreme Court construed the test for "degree acceptance [the to the of local obscenity proper "[t]he adult and held that question] won," work in has id. at inquiry ordinary is not whether an member compromise S.Ct. at then we would community] {of the would find serious liter protection against the First Amendment's ary, artistic, political, or scientific value in majoritarian pressure to stifle disfavored allegedly material, obscene but whether a expression. 500-501, See id. at 107 S.Ct. at person

reasonable would find such value in 1920-21; id. at 107 S.Ct. at 1923-24 material, taken as a whole." Id. at (Blackmun, J., concurring part and dis- 500-501, (footnote 107 S.Ct. at 1921 omit senting part). ted). State, Hunter v. 257 Ga. at 57 applied Ginsberg-type adaptation (1987). interpreted As to a 361 S.E.2d at 788 As obscenity test, Pope Pope, prongs of the adult teaches the first two of the Miller any minor, including "contemporary community that if reasonable test utilize stan seventeen-year-old, dards," would find serious val- whereas "serious value" is deter-as regulate prong materialthat satisfiesthe other two the third is decided with reference to prongs whether a reasonable member of the communi- of the test and has little or no valueto in society. why change ty allegedly Wesee no reason would find serious valuе in the l6-12-102(1)(C) material, regardless section standardfor seriousvalue should in to reflect the Miller obscene erage" munity of whether the "av- any way community member of the or the com- Ginsbergholding government affectthe that the "as a whole" would find serious value. mayprohibit Id.; State, 571,573, thesaleor distributionof material Hunter v. 257 Ga. 361S.E.2d Supreme prongs deemed obsceneunder the current The first and third also obscenity adults, require allegedly Courtdefinitionof as mod- obscene material be apply viewed "as a whole." Id. ified to to minors. interpretation prongs that the first two reject argu- Memoirs-Ginsberg obscenity 19. The districtcourtseemedto definition of accept changed by any way mentin its firstorder: "theCourtcannot were not Millerin plaintiffs'premise single appeal supported by that a standardfor all to this that the MillerCourt did not is further the fact necessarily `restrict[sJ distinguish minors to ate for the ... older minors the first reading reviewing appropri- prongs obscenity that whichis two oirs-Ginsberg test, yet of its test from the Mem very young child,'" explicitly or immature declined to I, (footnote adopt "utterly redeeming Webb 590 at 688-89 omit- without social val ted), only to embraceit in its second order. ue" test articulated in Memoirs and used in interpreted Ginsberg. The WebbII court the statute to The Court instead stated that the predominant prove cover "`the adult ue amount of all of the state need not "test that called on the an "utter" lack of value-a reading prosecution prove material'"becausethe seriousval- prong applied light negative, virtually impossible must be of what i.e. a burden comprehend, "most"minorscan and wouldcov- discharge under our criminal standards ot satisfying prongs

proof," er work the first two 413 U.S. at 93 5.Ct. at but must obscenity having literary material, the valuethat a test while serious instead show that whole," "taken as a ten-year-old appreciate, literary, artistic, polidcal could not lacks serious II, F.Supp. 1550, 93 5.Ct. at 2615. Webb 643 or that wouldnot or scientific value." Id. at fifth-gradereadinglist, be suitablefor a id. at words, prong In other Miller relaxed the third obscenity government test and allowed the ue, the material is not harmful mi- B. Regulation Indirect Protected Ac- of nors.” As the tivity. Fourth Circuit and the Virginia Supreme observed, recently Court 1. Overbreadth from indeterminacy. “ ‘if a work is found to have serious liter- The overbreadth vagueness and artistic, ary, political or scientific value for doctrines are yet related distinct. M.S. legitimate minority normal, of older ado- Co., 721 News F.2d at 1287. lescents, then it cannot be said to lack such vagueness “The doctrine is anchored in value for the entire juveniles class of taken Process Due of the Clauses Fifth and ” as a whole.’ American Booksellers Amendments, Fourteenth protects and Virginia, Ass’n v. (quoting F.2d at 127 against legislation lacking sufficient clar- ity purpose Commonwealth v. precision American and drafting. Booksellers Ass’n, City Jacksonville, Erznoznik v. 236 Va. 372 S.E.2d 205,] [422 S.Ct. (1988)).21 [2268,] at 2276-77 L.Ed.2d 125 [45 Section 16-12-102 therefore does not (1975)]; Grayned v. City Rockford, reach protected materials as to minors and 408 U.S. 108-14 n. & S.Ct. overly is not broad in that sense. As we 2298-302 & n. L.Ed.2d below, discuss interpretation of the and n. 5 coverage statute’s dramatically also de- (footnote omitted). Id. vagueness The doc- the amount creases material actuаlly trine on focuses whether ques- the law in by covered the ban display and the “person affords a ordinary intelli- gence a opportunity indirect burden reasonable suffered adults know what is prohibited, may so that he act result.22 accordingly.” Grayned, 108- Even when the regulates only state 109, 92 2298-99. legis- “Overbroad speech that unprotected group to one lation vague, need not be indeed it be (minors), the restriction can collaterally clear; too its infirmity constitutional is that burden that is protected for another sweeps protected activity pro- within its (adults). group regulation The can be “ov- scription.” Co., M.S. News 721 F.2d at (citation erly omitted). if it indirectly produces broad” an un- necessary or intolerable pro- restriction on The vagueness overbreadth and doc- speech. tected trines are related in that “a court should seventeen-year-old 20. A is of course a member would raise serious constitutional overbreadth group “prevailing to which standards concerns prohibi- for both a ban and a community respect adult as a whole with tion on to older sales minors. encroach- what is suitable material for minors” be must ment on the access of older minors to material applied 16-12-102(1)(C). under The addition literary which holds serious value for them layer analysis of a second in a variable ob- just great would question be if the statute in standard, i.e., scenity asking what a reasonable banned sale of such material to community member of the adult thinks would older as if the display. minors statute banned its literary hold serious value for a mi- reasonable nor, Pope. does not affect the rule articulated in say 22.This not to that the statute covers already subject Georgia’s general Supreme Court made no mention of obscenity O.C.G.A.§ 16-12-80. For ex- problem upheld such overbreadth when it ample, Digest Defendant’s Exhibit Human Ginsberg despite New York statute in the fact (June 1984), found in a convenience store with "utterly redeeming without social val- minors, no on in-store access restrictions prong obscenity ue” of the then-current stan- subject would "harmful to minors” and thus explicit provision varying dard made no for the maturity literary section 16-12-103’s bans on sales to comprehension minors levels display. amongst Curiously, The cover appellees minors. to several do refers articles appeal juvenile per- within that are written the ban on the or loan sale of material “ " though spective: ‘WhyMy defined in section even 16-12-102 Mom Loves Oral Sex!’ T " interpretation that the statute covers Made X-Rated Videos for ‘Sex Dad!’ Slave " hold ‘My would serious value for older minors Sis!' Anal ”. Aunt!’ 16-12-80.23 scenity O.C.G.A. as the un ambiguous as well the evaluate Second, opportunity despite the increased scope of the enactment....

ambiguous material at the the fitness of citizens to evaluate meanings ambiguous cause [since] ‘ minors, opposed to point sale to the unlawful zone” of far wider to “steer of display ordering publisher for of the forbidden boundaries if ... than the ” only sales,24 will incremen- Village display the ban clearly marked.’ areas were of necessary screening for the Flipside, Es tally increase Estates Hoffman Hoffmаn prohibition the Inc., comply to with tates, n. 102 booksellers S.Ct. 455 U.S. to mi- sale of “harmful” 1186, 1191 (quot on the n. 71 L.Ed.2d Bullitt, 360, 372, nors, found constitu- a burden district 377 U.S. Bagget ing ap- (in holding that (1964); Ginsberg 1316, 1323, under 12 L.Ed.2d 377 tional —a Finally, 16- Randall, appeal. section pellees do not quoting Speiser v. turn 12-103(e) displays that are 1332, 1342, only prohibits 2 L.Ed.2d reasons, these “knowingly.”25 For made (1958)). definition 16-12-102’s we that section find that interpretation upon its Based display ban substantial- not render the does evalu a work be serious of must value indeterminacy. ly due to overbroad “most” to that which with reference ated minor, minors, ten-year-old would or even the burden of man- 2. Overbreadth ap thus appreciate, that statute strategies. datory compliance reading a vast amount of adult plies to possible it an ideal world were If in material, court the district found in section 16-12- material defined make the on bo intolerable burden places statute completely visi- invisible to minors but the dis which books oksellers to determine adults, need we would accessible to ble and play reach. tremendous ban would it, interpret As we inquire no further. prac published and volume of material unprotect- only material covers gain more inability of booksellers tical so indeterminate minors and is not ed to materi familiarity with the synoptic than a expression. unduly protected chills would, publishers ac they al order from material cannot in the real world be Since court, force booksellers cording to the hamper- to minors without “invisible” made by “refusing to err on the side of caution it, access to extent adults’ a certain sugges display] book with order [for analyze compliance strategy we must known the works of an author tive cover or 16-12-103(e) actually mandates. II, Webb prose.” sexually explicit for F.Supp. at 1550. statutory “breadth” we degree refers to the in this context analyze the burden on booksel- We believe required actually practical inconvenience district far less than the lers would be (e). Only by language of subsection First, only a minimal suggests. since court requires the statute focusing on that which value have serious number of will works ban, display rather compliance with the reason- adults but for reasonable strategy that every compliance minors, than on minors, including older able necessary under the stat ex- sufficient but any great increase to statute will not ute, whether section 16- we determine do in can screening that stores must tent the 12-103(e) “substantially overbroad” or Georgia’s ob- comply general order to that it is easier to owner testified agreed bookstore "materials A that if 23.The district prohibition “at the comply since with the sales literary displayed they value for if hold can be opportuni- point has the bookseller] sale [the F.Supp. age eighteen," anyone under the maturity purchaser and to ty to assess would the burden on booksellers at 1554 n. II, Webb book selected." review indicates substantially "The court decreased. n. 9. only provision applied that if the expression," fringe material on the opinion Appendix for the "inappropriate for id. at "knowingly” in section 16-12- age majority," id. approaching the definition minors 1556, it 102(2). be constitutional. would compliance strategies; thus we need not is a fa- narrowly drawn.” Since this “not cannot, the burden on adults’ ac- appellees consider whether challenge, we cial cess overbroad. the constitution- would be suggest, consider seem to onerous propriety of the most methods al “exhibit,” “ex- The use of the terms reading of a broad compliance which pose,” “display” especially as mod- — (e) require. possibly could Such subsection public” strongly “in suggests ified — specific enforce- must await an evaluation presence that the mere of material “harm- interpretation of facts and a different ment minors,” premis- part ful to even in that Georgia by the courts. the law minors, frequented by es would not violate 16-12-103(e). court, 16-12-103(e), section One constru- section a In order to violate “exhibit, ing “display” the word in the context of knowingly ‍‌‌​‌​​​​​​​‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​‌​​​‌​‌​​‌‌‌​‍expose, or person must statutory very similar to section any public place language ... public in ... at 16-12-103,28 dic- recognized that common may or be invited as where minors are ... sexually tionary of the term connote general public”26 a definitions part of the placement open and of the ma- representation” satis- ostentatious explicit “visual that terial: three-pronged test under section fies the

16-12-102, a “printed or material” or (5th Ed. DICTIONARY BLACK’S LAW recording” that contains a “visual “sound 1979) “display” opening “an defines a as sexually explicit narra- or a representation” exhibition, manifestation, unfolding, or as to minors effect, that is obscene show, tive account exhibition for ostentatious under section 16-12-102. parade.” Similarly, WEBSTER’S NEW COLLEGIATE DICTIONARY that, First, beyond regardless cavil it is “put display” “to is to or states that choose method booksellers27 specific of the publicly,” spread the view “make before statute, they deny comply must to evident,” ostentatiously,” or “exhibit physical access to offen- minors unfettered off.” “show technically if satis- Even sive material. Rendell, Pa.Super. A.2d “displaying]” such prohibition on fies the omitted). (footnote Rendell material, any compliance method “display” as not interpreted the ban on knowingly permits minors person which shelving of applying open material peruse opportunity an unfettered “harmful minors”: over sub- elevate form material would 16-12-103(e). suggest that mere These definitions violate section stance and ma- shelving stocking questionable or Second, “where minors are we read directing terial, manner some without general pub- part of the may be invited them, type not the attention to limiting specifying the the clauses lic” as legis- of the prohibited by virtue conduct display upon which types premises “display.” term lature’s use of the Thus, are access if minors denied banned. 575-76, 481 A.2d at 938-39. Id. at may display premises, booksellers “exhibit,” violating the that the terms openly agree without While we such material open Indeed, “display” connote an separate room or “expose,” even statute. of the placement materi- that is inaccessible and ostentatious physical structure legis- als, agree that the open house dis- we cannot presumably minors could 16-12-103(e) in section read lature sanctioned But we do not plays of the material. shelving of material “harmful open 16-12-103(e) such the requiring section "display obscene as to minors specific material [of several of the more omitted 26. We have 16-12-103(e) three-prong test similar O.C.G.A. some- under a that are terms in section or commercial general phrases business given 16-12-102] more ... § what redundant probably minors ... are where establishment also utilized. any part of such exposed all or to view will be throughout the word “booksellers” 27. We use Pa.Super. A.2d materials.” See any person generically to passage to refer this subject at 934. statute. to the Rendell, 18 Pa.Cons. at issue in 28.The statute 5903(a)(1), part, prohibited, in relevant Stat. “expose” usage use of the term “display”.31

minors.” The mon of the word Plac- pas- suggests that even unadvertised entirely open sight the material in an entirely placement sive of the material establishment “where minors are or open sight would violate section 16-12- part general public” be invited as 103(e).29 16-12-103(e) despite would violate section “nonperusal” policy signs indicating Appellants suggested have a number of open certain otherwise areas are off-limits compliance strategies they claim to minors. 16-12-103(e). satisfy They would openly displaying assert Appellants suggest also “supervised “harmful to minors” an area by placing is satisfied keep the clerks in order to them out of “harmful to minors” behind devices com minors,” Appellants’ the hands of Brief at 30 monly referred to as or “blinder racks” sections,” “adults[-]only inor racks or shelves which at cover least the lower two- id. at accеptable. would be We dis- thirds of material that would otherwise be agree. Although pre- these methods would Id. 41-43. See M.S. exposed to view. physical perusal by vent actual access and News, (briefly describing F.2d at 1287 minors —a fundamental aim of the stat- racks”). agree. Simply put, “blinder We 16-12-103(e) “readily ute —section is not “exhibit, expose, blinder racks do not susceptible” interpretation allowing to display public” subject material to sec compliance strategy. such a Unlike 16-12-103(e); Virginia they tion eliminate the osten statute which the Fourth Circuit 16-12-103(e) recently upheld, open placement tatious and section does of the materia language Therefore, reading contain that narrows the eom- ls.32 under our of sec- Supreme physically 29. The Colorado Court struck down a "section” or “aisle” is distinct from a display language ban with identical as section segregated room or area inaccessible to minors. Cover, 16-12-103(e) Tooley, in Tattered Inc. v. (Colo.1985) (construing P.2d 780 Colo.Rev. 18.2-391(a) (1989) 31. Va.Code Ann. makes it However, 7—502(b)(5)(Supp.1984)). Stat. § 18— knowingly display unlawful "to [material Cover, parties stipulated Inc. the Tattered deemed "harmful to in a manner minors”] ways comply there were five to with the whereby juveniles may peruse examine or [it]." statute: added.) (Emphasis See American Booksellers (1) prohibiting entry plaintiffs’ into the stores Virginia, Ass'n v. 882 F.2d at In 126-27. answer age eighteen; persons of refusing under the question by to a certified the United States Su- carry display sexually explic- all preme appeal Court in an of the Fourth Circuit’s material; (3) refusing carry display it earlier decision that the statute was unconstitu- Act; (4) proscribed by restricting tional, Virgi- see 484 U.S. portions access to substantial of their material Supreme nia Court found that the statute would by segregating establishment sections their by policy prohibiting be satisfied a store section; only” with an "adults estab- perusal of such material minors whenever only” solely lishing an "adults section for ma- observed. Commonwealth v. American Booksel- proscribed by terial the Act. Ass’n, lers 236 Va. S.E.2d Supreme Id. at The Colorado Court found explicitly on the ba- statute unconstitutional finding above, sis trial court's factual that the regardless 32. As we stated in the text stipulated compliance strategies were not com- comply the method chosen to with the case, mercially parties feasible. The in this opportunity per- minors must be denied the contrast, stipulated have that these are the 16-12-103(e). subject use the material to section 16-12-103(e) only ways in which be section "display” pyrrhic The ban on would be but 16-12-103(e) as satisfied. We construe section victory legislature for the and would not serve affording compliance several less burdensome purpose protecting they minors if were options. simply allowed to reach over the blinder rack perusal. and remove the material for unfettered "adults[-]only interpret 30. We sections” to refer specify steps We need not that must be open places physically to aisles or in a store not opportunity taken to assure that the to browse is separate to minors. As from areas accessible eliminated. Since violation of section 16- phrase, appel- we understand their use of this "knowingly,” 12-103 must be done we are confi- suggest lants that material "harmful to minors” options dent that a number of are available that displayed openly could be place if the store had in perusal by signs adequate poli- would eliminate the minors of mate- a surveillance and/or cy insuring placed adults-only rial behind racks hinder- area and its blinder without contents were not accessible to minors. Such a adults’ access to such material. 16-12-103(e), necessary university,” from each of restrictions it is not distribution, segregate material section 16-12-103 on the exhi- physically booksellers bition, display racks from material “harmful blinder of materials placed behind Thus, the statute is to minors. Since it would be unlawful accessible minors.” while reading, susceptible” to such a we “readily any person for to “sell or loan” to a minor interpretations broader need not consider as to minors un- material deemed obscene compliance with requirements 16-12-102, section or to exhibit to a der 16-12-103(e). Ameri- Virginia v. picture satisfying the three- minor a motion Ass’n, 484 Booksellers can test, permissible would for a pronged (1988).33 Placing the rela- 108 S.Ct. at 645 Similarly, public library to do so. while it reading material tively amount of small library would be lawful for a subject to section 16-12-103 behind blinder minors,” is “harmful access only slightly burdens adults’ racks penal- person subject would be to criminal racks do not such material. Blinder knowingly undertaking the same ties for regula- “substantially overbroad” impose a of, example, a activity premises on the (See speech.” plus “conduсt tion on open to minors. convenience store 1499-1500, 1502.) pp. discussion above correctly determined The district court purchase the mate- may peruse and Adults Equal step critical Protection “[t]he either the rial restriction. Under without determining proper standard analysis is regulations on material balancing test for II, F.Supp. 643 at 1555. of review.” Webb another, group but not or protected to one however, disagree, the district We with time, constitutionality for the the test legislature’s court’s determination (see regulation, the dis- and manner place, subject to strict in this case is classification 1502), p. on above at burden cussion n scrutiny. to protected adults’ access to insignificant constitutionally and them is ques courts have addressed this Several News, 721 permissible. M.S. therefore and differed on whether strict tion have (relying part in on blinder F.2d at 1288-89 scrutiny appropriate. Without elaborat uphold against exception to racks adopted approach ing, the district court challenge). facial Upper Midwest Booksellers followed F.Supp. 602 City Minneapolis, Ass’n v. EQUAL AND THE PROTECTION V. 1361, (D.Minn.1985), 780 F.2d aff'd, 1374 EXEMPTION LIBRARY (8th Cir.1985) 1389, (exemption from 1398 display). In that regulation on manner of exempts “any 16-12-104 Section case, Eighth affirmed a district Circuit any state or library operated by the public that “the strict scru court’s determination any library political of its or] subdivisions^ proper whenever school, tiny test is the standard college, or part as a operated adults, availability perusal by “display” possible recognize read sec- it is to We that 16-12-103(e) require request requiring more than the use adults to tion and that argu- choice, suggested at oral racks. It was kept of blinder ment can inhibit underneath the counter satisfy section 16-12- order strategies general compliance seem to these minors, 103(e) open ma- in an establishment to materi- impose burden on adults’ access more (1) placed must be to minors" terial “harmful not determine as to them. We need al counter, or in some underneath the behind or constitutionally burdens would be whether such general public but not visible to the other area however, challenge permissible, since in a facial upon request; sealed in available to adults Georgia could possibility courts cover, opaque de- with an plastic fitted and/or 12—103(e) conceivably interpret more section 16— contents, or pending both, its cover or on whether broadly to render it do is insufficient than we ban, subject see were Ass’n, Virginia v. American Booksellers invalid. (e)(2); 12—103(e)(1) placed in a § 16— 645; 397-99, 108 S.Ct. at 484 U.S. at Erznoznik por- physically separate or area from that room 205, Jacksonville, 95 S.Ct. City 422 U.S. v. open We to minors. the establishment tion of 2268, (1975); v. Okla- 125 Broadrick 45 L.Ed.2d sug- these as to whether no determination make homa, 37 L.Ed.2d satisfy gestions the statute. would finding factual district court’s Given the heavily depend on its reading material sales of government classifies ler v. ability individuals’ A obscenity valid California.... right exercise fundamental such as statute that follows three-part defini speech.” F.Supp. at 1374. Our re- obscenity set out in Miller does search indicates that the Colorado Su- punish the exercise of a fundamental Cover, Court, in Tattered preme Inc. v. right. There is nо right fundamental Tooley, 696 P.2d (Colo.1985), has engage in speech. obscene Strict scruti agreed that scrutiny strict applies to clas- ny is thus appropriate. involving sification materials deemed Supreme Court applying cases “harmful to minors.”34 scrutiny strict in stat- classifications News- The Tenth Circuit held in M.S. regulating speech utes easily are distin- the rational applies basis test to a “classifi- guished. challenged statutes Th[e distinguishes cation that between commer- those regulated all prohibited cases] cial and enterprises” noncommercial in a protected speech, rather obscenity. than regulation requiring group former but Collins, Ripplinger v. 868 F.2d place not the latter to behind blinder racks (9th Cir.1989) (also criticizing Upper material obscene as to minors.35 721 F.2d Midwest Booksellers at 1291-92. The II Webb recently ap Ninth Circuit has (citation approved proach) omitted). approach: of this See also Ren dell, Pa.Super. 942; agree We 481 A.2d at ap the Tenth Circuit’s Long Casado. 130 Market proach Novelty St. &Gift Supreme Court Johnstown, held has that obscene pro is not 294 Pa.Super. tected amendment. See Mil A.2d first (1982).36 Hanaway, In Kucharek displays as did the Wichita ordinance [in (E.D.Wis.1989), News], a district court struck M.S. it is exempted clear that the con- obscenity vague- down Wisconsin’s adult law duct under the law is in fact non-com- grounds upheld library exemption ness but Appellants' mercial.” "suspect Brief at 55. Outside of under the rational basis test. The court ac- Equal classification” analy- Protection knowledged passing scrutiny sis, in dicta strict that specific upon the legisla- facts which the might appropriate evaluating classifica- ture’s light classification turns do not shed on involving tions material that is obscene for chil- the right by "fundamentalness” of the affected but classification; dren cently not adults. The Seventh Circuit re- the therefore those do facts not vagueness holding reversed the and af- scrutiny influence the level of that a court must library exemption discussing Rather, firmed the without apply. upon the facts which the classifi- Hanaway, this dicta. Kucharek v. 902 F.2d 513 help explain cation- legislative turns both its (7th Cir.1990). purpose and the likelihood that the classifica- purpose. tion will serve this Although the M.S. News court referred to the exemption generally turning application in that case as 36.The on scrutiny of the strict stan- distinction, the dard involving the in cases commercial/noncommercial drawn classifications Wichita explicit- regulating ordinance at issue did not refer laws material that is not obscene ly use; instead, provided to "commercial” it to either adults or minors does not conflict with perform- holding affirmative defense if the our in this upon case. In a case relied court, “displayed, presented by ance was Upper the disseminated example, Midwest Salem Inn, recognized Frank, to a minor at a (2d Inc. v. and established 522 F.2d school, church, museum, clinic, Cir.1975), hospi- applied medical the Second Circuit strict scru- tal, public library, governmental tiny agency, quasi- prohibiting to topless dancing an ordinance governmental bars, agency and for a in ments, [if done] bona restaurants and various other establish- governmental, pur- fide pose.” allowing educational dancing opera or scientific but such hous- es, City 5.68.156(3) Code of places. the Wichita theaters and other See id. at 1046-47 News, (describing classification). See M.S. 721 F.2d at 1291. the The Salem Inn explicitly pointed Appellees out that its decision make much of the to fact apply scrutiny strict turned specifically on the 16-12-104 does not turn fact on on whether distributed, its face the exhibited, displays ordinance the reached "of is or dis- partially nude female played commercially form" that were not ob- rather than noncommer- scene as to cially. even Appellees’ minors and thus constituted Brief at 44-45. also Webb II, completely protected expression: (noting at 1556 n. 20 "that the legislature apparently rejected reemphasize the commer- We that the ordinance here is amending cial/noncommercial distinction directed obscenity not at lewdness or but at Act”). Appellants respond which, nudity [Supreme] ”[e]ven has Court re- though Georgia us, Act does per its face is minded se ‘obscene even as to exempt many non-commercial distributions minors.’

15H protection clearly The constitutional ac The state has an interest in mak- minors, right legislature such material corded to the which the available to if at all, only in an environment scrutiny free of the judicial classifies—and thus pressure pander commercial to a minor’s depend classification—should not on broad prurient interest in sex. See Paris Adult propositions such as “free is funda Slaton, 49, 57, Theatre I v. mental,” “obscenity unprotected,” 2628, 2635, (1973); 37 L.Ed.2d 446 but, rather, specific on the nature of the Theatres, Young v. American Mini legislature has conduct decreed 2440, 2452, 49 L.Ed.2d in, group may engage separate one while a (plurality). Although the exclu- looking By precisely class not. at the (as sion under the adapted Miller test implicated by exemptions conduct light Ginsberg, see section 16-12- provisions each of the stat 102(1)(C))for material with “serious liter- ute, we see that the classification on the artistic, ary, political, or scientific value to right loan to sell or material minors that already exempt sexually minors” will most as to them is somewhat obscene distinct explicit expect material that one would right from the such material to public library, find in library exemp- regulation.37 adults without preserves accessibility of such ma- purely pur- terial to minors for educational Right A. A on the to Sell classification poses.38 or Loan Obscene Materials Minors. fact that the state has chosen The Ginsberg Court held without exempt entities, not to all noncommercial equivocation that the Constitution does not specific or even noncommercial entities that protect the decision to sell or loan to mi expected promote could be the same nors material that is obscene under a varia libraries, consequence interests as is of no obscenity If ble standard. the state has a long particular exemption so as the chosen concluding legit rational basis for that a has, case, as in this a rational If basis. imate interest will be served the classifi upon classifiсation itself is not based cation, may create distinctions between suspect race,39 distinction such as persons rights engage and entities to Equal Protection Clause is not offended protected by in conduct not the Constitu an under-inclusive or over-inclusive restric Indep. tion. Antonio v. ability engage San School Dist. tion on one’s in conduct Rodriguez, protected by that is not the Constitution. 1294-95, Thornton, 36 L.Ed.2d 16 901 F.2d 738 United States (citation omitted). right See an Id. also 37. The to sell admission ticket to a Cruz Ferre, (S.D.Fla.1983) (strict F.Supp. picture presenta- minor a or other for motion scrutiny applied to classification drawn between tion that ‍‌‌​‌​​​​​​​‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​‌​​​‌​‌​​‌‌‌​‍is obscene as to minors under section regulation is, discussion, broadcast and cable television in purposes 16-12-102 for the of this material), reaching indecent not obscene but loaning virtually selling the same as to mi- (11th 1985). aff’d, 755 F.2d 1415 Cir. Thus, that is obscene as them. nors material agreed Ripplinger with the rational 16-12-103(b) exemption impli- to section Casado, approach placed test in but Tat- basis equal protection analysis cates as the the same Cover, Upper II tered Midwest Webb within 16-12-103(a), exemption which is to section dis- category including of cases Salem Inn and in text. cussed Cruz, although it rather than acknowl- Casado— edged [Upper Midwest nor Webb "[n]either suggested 38. The Seventh Circuit that li- has narrowly." Ripplinger, is written so

II] brary exemptions obscenity in statutes also agree F.2d at 1050 n. 7. We do not purpose shielding serve the libraries from Minneapolis ordinance and the Colorado and groundless complaints they “ are disseminat- regulations Georgia statutes dealt with on 'sex- Hanaway, materials. Kucharek v. obscene explicit’ ‘obscenity’ ually material rather than (7th Cir.1990). 902 F.2d 513 regula- in Miller v. Id. The defined California." regulated merely tions in all three cases "sexually explicit" material, argued Appellees have not that the classifica- but material that is "inherently suspect” Upper and therefore obscene as Mid- tion itself at least west, to minors. 1390-91; II, scrutiny deserving of strict under another 780 F.2d at Webb 1549-50; Cover,Inc., analysis. Equal P.2d at branch of Protection Tattered Cir.1990). (9th striking Finally, suppression, only down such place but where it 71-72, exemption pro- would hinder rather than could be exhibited. 427 U.S. at speech. mote robust 2452-53.40 though recognize we [E]ven Right on the B. A to Dis- Classification First Amendment will not tolerate the play Material Obscene as to Minors. suppression total of erotic materials value, Although arguably the classification be have some artistic it is presents society’s pro- and nonlibraries manifest that interest tween libraries applied tecting expression question type closer when to the ban on this is of a different, lesser, wholly magnitude of materials obscene as to mi nors, scrutiny political we find that strict is not than the interest untrammeled First, political oratory we note that while the debate.... Whether warranted. protect philosophical ap- does not the distribu discussion moves us to Constitution said, plaud despise every of material obscene as to what is tion to minors why them, creators, duty schoolchild can understand our publishers, and sellers of right speak material, adults, defend remains the pro suсh as well as are same. But few of us would march our significant tected from or overbroad re daughters pre- sons off to war to on adults’ access to materials not strictions right “Specified serve the citizen’s to see Nevertheless, obscene as to adults. as we Sexual Activities” exhibited the the- above, protection is not abso discussed though aters of our choice. Even may make such lute. Since the state mate protects First Amendment communica- society— segment rial to one unavailable suppression, this area from total and lack minors—due its offensiveness may legitimately we hold that the State them, may of “serious value” for also use the content of these materials as the impose necessary and moderate amount placing basis for in a them different clas- group on the for whom such burden pictures. sification from other motion material is an effort —adults—in protect young Simply put, adolescents. Id. at 96 S.Ct. at 2452. protect the Constitution does not unfet The classification drawn between li- tered, open placement materials in of such braries and nonlibraries section 16-12- public places to minors. accessible deserving scrutiny 104 is even less of strict since, though zoning Even the First Amendment is unlike the ordinance in Amer- requirement Theatres, that erotic unoffended ican Mini it turns not on the placed presented material not to adults be content of the obscene ex- —the racks, emption must display operate behind blinder we consider and the ban on whether, given unique nature of the on material obscene to minors—but involved, right group entity display- allow one on the a state characteristics of the operate of free of expres- entities—libraries—to material—the medium of restriction, other Ripplinger, this while all entities sion. 868 F.2d at 1051. display. must adhere to the ban on exemption The for of materials First, plurality in we note that the Amer- harmful to minors at libraries serves the exemption ican found that even a con- same interests as Mini Theatres for distri- exotic rationally making tent-based classification of but bution and is related to Equal by obscene material did not material covered violate Act available an atmosphere pressure Protection Clause since what was ultimate- free of commercial ly generally pur- at stake the material’s total was not available for educational plurality upheld describing relating 'Specified 40. The American Mini Theatres or Sexual Activ- (as zoning requirement prohibited zoning a more than ities’ ... ordinance])” defined in the [elsewhere any subject one adult theater 1000 feet of two feet within were "1000 "regulated other ATI U.S. at n. the- uses.” See rule.” Id. at aters, 2444. Other uses”). (defining "regulated specified S.Ct. at section 16- 2444 n. 3 like the libraries Only present unre- theaters licensed to material "char- 12-104 of the were by emphasis depicting, acterized an on matter strained. (3) person above, “Minor” means a less than the under- or over- As poses. stated years age. of of the classification does inclusiveness long clause so Equal Protection

offend (4) means actu- abuse” “Sadomasochistic rationally related to is as the classification flagellation by or al or torture simulated interest.41 the state’s nude, upon person who is clad or cos-

undergarments, a mask or bizarre fettered, tume, being or the condition of CONCLUSION bound, physically restrained or otherwise of the district court judgment The by one so or nude. clothed REVERSED. (5) means or “Sexual conduct” actual masturbation, of homo- simulated acts APPENDIX intercourse, physical sexuality, or sexual Definitions. 16-12-102 apparent sexual stim- contact in an act of person’s with a gratification ulation or part, the term: As used in this area, genitals, pubic clothed or unclothed (1) to minors” means “Harmful female, buttocks, or, if such be breasts. description representation, quality of or (6) means the condi- “Sexual excitement” form, nudity, con- of sexual whatever genitals male or female human excitement, duct, or sexual sadomaso- or when in a of sexual stimulation state abuse, when it: chistic arousal. whole, (A) predominantly as a Taken explicit nudity” means a shameful, “Sexually or

appeals prurient, to the expose so as to state undress minors; morbid interest genitals, pubic human male or female (B) prevailing patently Is offensive area, with less than full or buttocks community as a in the adult standards showing opaque covering, or the respect to what is suitable whole with fully than a female breast with less minors; and for covering any portion thereof opaque whole, lacking (C) Is, taken as when nipple, the de- top below artistic, literary, political, or in serious uncovered male piction of coverеd or for minors. value scientific discernibly turgid in a genitals state. general (2) “Knowingly” having a means 16-12-102, (Code 1981, enacted Ga. § know, of, or a or reason to knowledge Ga.L.1984, 1437, 2; p. L.1983, p. war- ground for belief which belief or 3.)§ inspection inquiry rants further exhibiting, Selling, loaning, or 16-12-103. both: person (a) any It shall be unlawful (A) and content character monetary knowingly sell or loan part in this described which furnish or dis- or otherwise consideration susceptible to reasonably examination a minor: seminate to defendant; drawing, photograph, minor; Any picture, provided, (B) age of the film, picture or sim- sculpture, motion shall however, mistake that an honest image of a representation or ilar liability in visual excuse from constitute body portion of the human person a rea- if the defendant made part nudity, sexually explicit depicts which sonable, attempt to bona fide ascertain conduct, or sadomasochistic sexual minor. age of such the true right deal in to somehow exempt on the classification of classification between focus the effect relate to to address nonexempt must of course material in an effort entities such and protecting speech neighbor- minors from quasi-protected a state’s interest such of hoods, as to Theatres, that is of material obscene harmful effects or some Mini see American not draw a A state could classification them. affecting speech secondary un- effect such other group to one but protecting the interest in to the state’s related protect- unrelated an interest tо another to serve unprotected— group material is such whom unpro- expression group which the case, in this minors. example, draw a the state could not tected. For public any at newsstands or other business or commercial establishment or minors; abuse and which is harmful to any public place frequented by other or minors or where minors are or book, (2) pamphlet, Any magazine, part general public: invited as of reproduced, printed matter however or (1) any picture, photograph, drawing, recording which any sound contains sculpture, film, picture motion or sim- (1) in paragraph matter enumerated of representation image ilar visual or of a subsection, explicit or this and detailed person portion body or of the human descriptions or narrative ac- verbal depicts sexually explicit nudity, which excitement, sexual counts of sexual conduct, sexual or sadomasochistic conduct, or sadomasochistic abuse and minors; abuse and which is harmful to which, whole, taken as a is harmful to or minors. book, any pamphlet, magazine, (b) any person be unlawful for It shall printed reproduced, matter however or or knowingly to sell furnish to a minor recording sound any which contains pass knowingly ticket or or an admission matter in paragraph enumerated of premises to admit a minor to whereon subsection, explicit and detailed show, picture, there is exhibited motion descriptions verbal or narrative ac- which, presentation or other in whole or excitement, counts of sexual sexual part, depiсts sexually explicit nudity, conduct, or sadomasochistic abuse and conduct, or sexual sadomasochistic abuse which, whole, taken as a is harmful to is harmful to (cid:127)and which minors or exhibit (Code 1981, 16-12-103, minors. 16- §§ picture any any such motion such Ga.L.1983, by p. enacted premises designed pre- which are not to 2; Ga.L.1984, 16; Ga.L.1984, 22p. § § viewing any public way vent of 1495, 3.) p. § picture by such motion minors not admit- Library exception. 16-12-104. any premises. ted to such provisions of the Code Section 16- (c) any It shall be unlawful for minor distribution, exhibition, 12-103 [the falsely represent any person men- apply any pub- shall not bans] (a) (b) tioned in subsection or subsection library operated by any lic the state or agent of this Code section or to his political its any subdivisions nor to li- years age such minor or older brary operated school, part any as a procure any with the intent to (Code college, university. (a) set forth in subsection of this Code 16-12-104, Ga.L.1984, p. enacted procure section or with the intent to such 1495, 3.)§ any picture, admission minor’s motion show, presentation, or other as set forth (b)

in subsection of this Code section. POINTER, Judge, Chief District (d) any person It shall be unlawful for concurring part dissenting in pajrt: knowingly representation to make a false agree I majority’s opin- most of the (a) any person mentioned in subsection ion, specifically concur in the (b) decision or subsection this Code section or library exemption provided agent parent to his that he is the sec- tion 16-12-104 is constitutional. guardian any any minor or that minor years age is 18 or older with the intent dissent, however, respectfully I from the procure any material set forth in sub- upholding display proscriptions decision (a) of this Code section or with 16-12-103(e). In of section Part IV-Bi-2 procure intent such minor’s admis- opinion, majority concludethat sec- show, picture, sion to motion or oth- 16-12-103(e) permit can be read to presentation, er as set forth in subsection penalties by to avoid criminal booksellers (b) of this Code section. using agreed If I “blinder racks.” on this (e) any person agree It I their point, shall be unlawful for would decision as exhibit, constitutionality knowingly expose, display to the of the section. Al- HARRIS, Plaintiff-Appellant, B. Marcus we appeal should assume though on this adopt a narrow con- Georgia would section, any such narrow- struction of HEINRICH, Parrish, David M. Walter would have to a reason- ing construction Baker, Benny Defendants-Appellees. light in the of the words of the one able I do not believe that the statute statute. No. 89-3868 Georgia legislature adopted Non-Argument Calendar. “readily interpretation susceptible” to the approved by majority. Appeals, United States Court of 16-12-103(e) Section makes it unlawful Eleventh Circuit. “display public any at ... ... busi- Dec. any ness or commercial establishment or at public place where minors are or other ... part general public

may be invited as any printed matter ... which con-

... ... any explicit and detailed verbal

tains ...

descriptions ... of sexual conduct ... whole,

which, is harmful taken as a added) The (emphasis

minors.” statute prohibit display

does more than minors; that are harmful to

materials display printed matter that

prohibits the It such harmful materials.

“contains” magazine display criminal the of a

makes if harmful materi-

with an innocuous cover the cover—and

als are to be found inside any minor is is so whether or not

this the harmful materials

permitted to view like- proscription The would

themselves. portion if of the cover were apply

wise racks.”

shielded “blinder opinion in the case mentioned discussing question is M.S. News

when (10th Casado, 721 F.2d 1281 Cir.

Co.

1983). propo- support News does M.S. ‍‌‌​‌​​​​​​​‌‌‌‌‌‌​‌‌‌‌​‌​‌​​​​‌​​‌​‌​​​‌​‌​​‌‌‌​‍dis- permitting materials to be

sition racks would save the

played behind blinder attack; not, however, it does any support concluding that the

provide excep- statute contains such city ordinance at issue in that

tion. prohibited of harmful ma-

case (not containing publications such

terials

materials) express excep- and contained an displays in blinder racks.

tion for majority, under the suggest

I interpreting construing

rubric simply it. have rewritten

Case Details

Case Name: American Booksellers v. James Webb

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 27, 1990

Citation: 919 F.2d 1493

Docket Number: 87-8199

Court Abbreviation: 11th Cir.