Powell's Books, Inc v. Kroger

(formerly Powell's Books, Inc v. Myers) _F.Supp. 2d_ (D. Ore. Dec. 12, 2008) (unsuccessful challenge to Oregon harmful to minors law; on appeal to the 9th Cir.) (C)

  1. Media Coalition's Brief to the 9th Circuit
  2. ACLU's Opening Brief to the 9th Circuit
  3. Amicus Brief from The Thomas Jefferson Center for the Protection of Free Expression
  4. Plaintiff's Reply Brief in the U.S. Court of Appeals for the Ninth Circuit
  5. Memo in support of preliminary injunction
  6. Motion for preliminary injunction
  7. Plaintiffs' complaint
  8. Oregon ACLU's notice of appeal to the Ninth Circuit Court of Appeals

Most recent news: October 8, 2009: Media Coalition filed a reply brief in the Ninth Circuit Court of appeals.  This case concerns a law that does not use the Miller/Ginsberg definition of 'harmful to minors,' instead prohibiting distribution of sexually explicit materials to minors under 13 under any circumstances and to older minors under 18 for the purpose of arousing or satisfying sexual desires.  Plaintiffs have filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit. The Oregon Attorney General's brief was filed on September 25, 2009.

 

History:

On Febrary 3 and 4th, 2009 plaintiffs filed notices of appeal to the United States Court of Appeals for the Ninth Circuit.  Because the District Court's decision has a different impact on booksellers than upon providers of health and sex information, two notices of appeal were filed; one on behalf of the bookstores and Media Coalition plaintiffs, and one on behalf of Planned Parenthood, Cascades AIDS Project, Candace Morgan and the Oregon ACLU. 

On December 12, 2008, the Court ruled that "as interpreted," the statute was constitutional as a permissible limitation on speech and that it was not unconstitutionally vague.  On January 6, 2009, final judgement was entered dismissing the complaint.

U.S. District Court Judge Michael Mosman, of the District of Oregon, declined to grant plaintiffs' motion for preliminary injunction, which was filed on April 25 in U.S. District Court in Portland, Oregon. Judge Mosman has set an expedited schedule for trial for a permanent injunction. Plaintiffs' opening brief is due July 30th, the State's response is due on August 29th, and plaintiffs' reply is due on September 12th.  The Attorney General submitted the State brief on September 25, 2009.  The hearing on the merits is scheduled for October 3rd.

The case is a challenge to a law that makes illegal for minors sexually explicit material without adhering to the Miller/Ginsberg three-pronged test. The law bars disseminating to a minor under 13 "sexually explicit material" which is defined as visual images of sexual conduct. The law also makes it a crime of "luring" by disseminating visual material showing sexual conduct or a narrative account of sexual conduct to anyone under 18 with the intent of sexually arousing or satisfying the provider or recipient of the material. Neither provision provides for a value prong. The law went into effect January 1, 2008.

Plaintiffs are the Association of American Publishers, American Booksellers Foundation for Free Expression, Comic Book Legal Defense Fund, Freedom to Read Foundation, comic book publisher Dark Horse Comics, Powell's Books, Old Multnomah Bookstore, Annie Bloom's Books, Colette's: Good Food and Hungry Minds, Paulina Springs Books, St. John's Booksellers, 23rd Avenue Books, librarian Candace Morgan, Planned Parenthood of the Columbia, Cascade AIDS Project, and the Oregon Civil Liberties Union.

 

 

updated 10/12/09