Booksellers Concerned by Oregon Decision


NEW YORK, NY, January 7, 2009 – The American Booksellers Foundation for Free Expression (ABFFE), the bookseller’s voice in the fight against censorship, today expressed concern about a federal judge’s recent decision upholding an Oregon law that could restrict the sale of books, magazines and other material to minors. In April, ABFFE joined six Oregon booksellers and others in challenging the law because it lacks the procedural safeguards that have been written into the laws of every other state in compliance with U.S. Supreme Court decisions. However, U.S. District Court Judge Michael W. Mosman declared in an opinion issued on Dec. 12 that the Oregon law contains provisions that offer comparable protections. “We disagree with Judge Mosman,” ABFFE President Chris Finan said. “We believe that the Oregon law does not provide the explicit guidelines that booksellers and others need in determining whether they may be committing an illegal act.”

The law makes it a misdemeanor punishable by up to one year in jail to allow a minor under 13 to view or purchase a “sexually explicit” work. It also makes it a crime to furnish anyone under 18 with a visual representation or verbal description of sexual conduct for the purpose of arousing or satisfying the sexual desire of the person or the minor.

In his opinion, Mosman acknowledged that the law does not meet the precise terms of the test established by the Supreme Court: it does not require that the work be patently offensive or appeal to prurient interest or that it be considered as a whole. There is also no protection for material that has serious literary, artistic, political or scientific value.

However, Mosman noted that the law contains an exception for “material the sexually explicit portions of which form merely an incidental part of an otherwise non-offending whole and serve some purpose other than titillation.” Read together with other portions of Oregon law, the judge held that this exception provides protections that are functionally equivalent to the Supreme Court test. The law would only apply to those who intentionally sought to sexually arouse a minor, he said.

Booksellers continue to believe that the law does not provide clear guidelines for determining what material is prohibited. For example, would it be a crime to allow a 12-year-old to view a book with a single sexual image even if it is a work of sex education intended for minors? Could a clerk be arrested for selling a romance novel to a 17-year-old? Without clear answers to these questions, booksellers would be forced to stop selling such material, depriving both adults and minors of works they have a First Amendment right to receive.

Attorneys for the plaintiffs will meet soon to decide whether to appeal the decision to the U.S. Court of Appeals for the Ninth Circuit.

The Oregon booksellers participating in the challenge are Powell’s Books, Annie Bloom’s Books, St. John’s Booksellers and 23rd Avenue Books, all located in Portland; Paulina Springs Books, which has stores in Sisters and Redmond, and Colette’s Good Food + Hungry Minds in North Bend.

The other plaintiffs are the Association of American Publishers, the Freedom to Read Foundation, the Comic Book Legal Defense Fund, Planned Parenthood of the Columbia/Willamette, Inc., Cascade AIDS Project, the American Civil Liberties Union of Oregon and Candace Morgan.