Opposition Brief — American Booksellers Ass'n v. Webb

DaryL_ A. ROBINSON

| Supreme Court, US. |

7a FILED

= «APR 29

No. 90-1523 sali

- HE CLERK |

In The

Supreme Court of the United States

October Term, 1990

&

4

AMERICAN BOOKSELLERS ASSOCIATION, INC.,

Petitioners,

JAMES WEBB, etc. et al.,

Respondents.

,%

vw

Petition For Writ Of Certiorari To The

Court Of Appeals For The Eleventh Circuit

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——_

BRIEF IN OPPOSITION

Ly.

f

MicHaAEL J. Bowers Georce M. WEAVER

Attorney General of Special Assistant Attorney

Georgia General of Georgia

Counsel of Record

9040 Roswell Road

Suite 410, River Ridge

Atlanta, Georgia 30350

Senior Assistant Attorney

General of Georgia

WILLIAM F. AmMIDEO (404) 641-6010

Assistant Attorney Genera:

of Georgia

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Court of Appeals erred in conclud-

ing that the provision of the Georgia minors’ access law,

which has never been enforced or construed by the Geor-

gia courts, that prohibits the “knowing[]” display in pub-

lic of material obscene for minors and having no serious

value for any reasonable minor does not have ¢ substan-

tial deterrent effect on protected expression, is subject to

narrowing constructions, and is therefore not subject to

facial overbreadth invalidation.

2. Whether the Court of Appeals erred in conclud-

ing that the library exemption of the Georgia minors’

access obscenity law, which has never been enforced or

construed by the Georgia courts, is not violative of the

Equal Protection Clause of the Fourteenth Amendment.

il

TABLE OF CONTENTS

Page

CUESTA FREON DO? 60. es ne ceive ste ee nee eee i

TABLE OF COUT BESS so oe ci neve ccacttaveeenwes ii

TABLE OF AUTPIAARIE Ee . ws cccrsewendenaee . wi

STATEMENT OF THE CARE... 6202s ccs kecsieemee 1

SUMMARY OF ARGUMENT.................... Pa

BIGGS 5 we hc ks beeen oe de ae ee ee 7

I. THE GEORGIA ACT IS SUPPORTED BY THE

STATES’ STRONG INTERESTS IN PROTECTING

MINORS FROM ACCESS TO MATERIALS HARM-

FUL TO THEM AND IN PROTECTING THE

RIGHTS OF PARENTS TO SUPERVISE THE —

DEVELOPMENT OF THEIR CHILDREN ........ 7

II. THIS COURT HAS IMPOSED STRICT LIMITA-

TIONS ON THE FACIAL INVALIDATION OF

STATE STATUTES FOR OVERBREADTH ...... 10

Il. THE COURT OF APPEALS CORRECTLY HELD

THAT, FOR REASONS EITHER UNAVAILABLE

TO OR NOT RECOGNIZED BY THE DISTRICT

COURT, THE ACT PLACES ONLY A MINOR

BURDEN ON PROTECTED ADULT SPEECH.. 14

IV. THE COURT OF APPEALS DID NOT ERR IN

UPHOLDING THE LIBRARY EXEMPTION

UNDER THE RATIONAL BASIS TEST OF

As FRE LE «vk e con cenaananeeeneee 21

CONCLUSION

ill

TABLE OF AUTHORITIES

Page

Casis

American Booksellers Ass'n v. Rendell, 481 A.2d 919

(Pa. Super. 1984) ............... 0.000000. 1, 2, 15, 26

American Booksellers Ass‘n v. Virginia, 882 F.2d 125

ey ca cesses sess eee. 1, 2, 16, 19

American Booksellers Ass'n v. Webb, 654 F.Supp. 503

a 4

American Booksellers Ass'n v. Webb, 643 F.Supp.

oo vids prs evecesedscccceees 3

Bethel School District v. Fraser, 478 U.S. 675 (1986).... 15

Bolger v. Youngs Drug Products, 463 U.S. 60 (1983)..... 8

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ....10, 11, 12

Brockett v. Spokane Arcades, 472 U.S. 491 (1985) ...... 10

Butler v. Michigan, 352 U.S. 380 (1957)............. 8, 14

Cole v. Richardson, 405 U.S. 676 (1972)............... 12

Commonwealth v. American Booksellers Ass'n, 236

2D) 16

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)

eee ee edn ce secs accedecess 6, 9, 14, 18

FCC v. Pacifica Foundation, 438 U.S. 726 (1978).....9, 15

Pasoy v. Scnultz, 487 US. 474 (1988)................ 13

Ginsberg v. New York, 390 U.S. 629 (1968)..... co SS, i

Hamling v. United States, 418 U.S.-87 (1974).......... 18

Hart Book Stores v. Edmisten, 612 F.2d 821 (4th Cir.

iv

TABLE OF AUTHORITIES - Continued

Page

Pomweber ©. Bile, Zor Gab. G78 CIRO P vnc ccc ce ek 16

IDK, Inc. v. County of Clark, 836 F.2d 1185 (9th Cir.

MES ARUSSascasuusateeey seabes or sae wkaes en el osu 13

Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676

CN ew ote hace 2 ee VTA es Oe SSC ee ce eR eo AD 9

Jenkins v. Georgia, 418 U.S. 153 (1974) ............... 10

Kucharek v. Hanaway, 902 F.2d 513 (7th Cir. 1990)

NCEE CUTE CRP REP TARR CEOS eT EES ORCS EEN ES CORE aa, omy Of

Long v. 130 Market St. Gift & Novelty, 440 A.2d 517

SU CED nae code Sac weaewnenva sean ee menwas 26

M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.

DENY te Sac wus tach ek nt Ce uN es 2, 12, 14, 19, 20, 25

Members of City Council v. Taxpayers for Vincent, 466

oh Be | A ea pon b a ee. haere e em 11

Miller v. California, 413 U.S. 15 (1973)............. 9, 14

New York v. Ferber, 458 U.S. 747 (1982)..... 6. 7, 21, 12

New York State Club Ass’n v. City cf New York, 108

Be RR wes kos oh ok es bo cack coeeendmeieues 22

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ..9, 2?

Paract ©. Cg; GET UD. FAS GUO ne esa ceecaes 11

Piepenburg v. Cutler, 649 F.2d 783 (10th Cir. 1981).... 26

ge eB) er ee 24

Pope v. Hitnois, 461 U.S. 697 (1987) ............>. passim

Railroad Commission of Texas v. Pullman Co., 312

ae ERD 6 hada ke deena cesar seaward ewer pada 3

Ripplinger v. Collins, 868 F.2d 1043 (9th Cir. 1989) ...25, 27

Rose vw. Locet, G25. US. GB CGT ads woos oc ce eee

TABLE OF AUTHORITIES - Continued

Page

Sewell v. State, 238 Ga. 495 (1977), app. dism., 435

U.S. 982 (1978) ..... Sh Pee ee er er rere i> ae

Smith v. California, 361 U.S. 147 (1959) ..00 0. 17

Time, Inc. v. Hill, 385 U.S. 374 (1966)................ 13

Upper Midwest Booksellers Ass'n v. Minneapolis, 780

van oer Gin Car. P9GS)............4... 2, 14, 19, 26

Virginia v. American Booksellers Ass'n, 484 U.S. 383

EC eg hee er Ue a ne ee Pay ae

Young v. American Mini Theatres, 427 U.S. 50 (1976) . ee

STATUTES

Ark. Stat. Ann. § 5-68-308(c) (1987) ......0.0.000..... 23

Colo. Rev. Stat. § 18-7-503(1)(a) (1990)....0.0.... ee

Del. Code Ann. tit. 11, § 1365(k)(3) (1987)... ee

Ga. Code Ann. § 16-12-102, et seq. (1988)........ passim

Idaho Code §§ 18-1517(1)(d), -4102(B) (1987) ..... ae

Ill. Rev. Stat. ch. 38, §§ 11-20.1(b)(2), 11-21(e)()

ee er nee 23

Ind. Code Ann. § 35-49-3-4(2) (Burns 1985).......... 23

oma Lege Ann. & 726.7 (1979) ....... 2... cbc s. 23

Kan. Stat. Ann. §§ 21-4301(4)(b), -4301a(2)‘b),

-4301a(2)(c), -4301a(2)(d) (1988) ........... epee

La. Rev. Stat. Ann. § 14:106.D(1) (West 1986)........ 23

Me. Rev. Stat. Ann. tit. 17, § 2911(2)(A) (1983 &

SU OL ei atu tay cranes eel ae ae

vi

TABLE OF AUTHORITIES - Continued

Page

Mass. Ann. Laws ch. 272, §§ 28, 28C, 29B(e) (Law

Co-op. 1960 @ Sap SRF vi vores sneces cee t ss 23

Mich Comp. Laws Ann. §§ 752.367(a)(ii),

722.676(a) (1994 Ge Cie, FO nw kee sss sce. +s 23

Minn. Stat. Ann. § 617.295(a) (West 1987)........... 23

Miss. Code. Ann. § 97-29-107(1)(c) (Supp. 1990) ..... 23

Neb. Rev. Stat. §§ 28-810(4), -815(1) (1989) .......... 23

Nev. Rev. Stat. Ann. § 201.237 (1986)................ 23

N.H. Rev. Stat. Ann. § 649-A:4 (1986)............. oe

N.M. Stat. Anm. @ SQsR7oRiRP Gime ec sco as se vss esses 23

N.Y. Penal Law §§ 235.10, 263.20(2) (McKinney

hi: ) ) I 23

N.C. Gen. Stat. §§ 14-190.15(c)(2) (1986)...... cafes. 23

N.C. Gen. Stat. § TR=00GRICS) CPS ccc cece sce 23

N.D. Cent. Code §§ 12.1-27.1-03.1(2)(c), -27.1-11,

-27.2-O5(2) (19S Ge PAR Bae ic pvc ance eas scses 23

Ohio Rev. Code Ann. §§ 2907.32(B), .321(B)(1),

.322(B)(1), .323(A) (Anderson Supp. 1990)......... 24

Or. Rev. Stat. §§ 167.085(2), .089 (1990).............. 24

S.C. Code Ann. § 16-15-385(c)(2) (Law Co-op.

Supp. 1990) . .. ...s05 4 eae een eee aah ss \ 5 24

S.D. Codified Laws Ann. §§ 22-24-31(4), -37(2)

1b .:.) Sr rare Pte Le 24

Utah Code Ann. §§ 76-10-1224, -1226 (1990 &

supp. 1996) ....<c0ss evan becr re ere eer eet ceca ss 24

vii

TABLE OF AUTHORITIES - Continued

Page

Vt. Stat. Ann. tit. 13, § 2805(b)(3), (c)(3) (Supp.

CCl eee nch a teh W keke uh euse abs Leeks «6 44-26% 24

Va. Code Ann. §§ 18.2-383(1), -391.1(1) (1988) ....... 24

Wash. Rev. Code §§ 9.68.015, 9.68.100 (1988) ........ 24

Wis. Stat. Ann. § 944.21(8)(a), (b)(5) (Supp. 1990) .... 24

Wyo. Stat. § 6-4-302(c)(ii)(1988) ©2002. 24

OrHerR AUTHORITIES

I GUMSII FONG) og ee ces in ceca aeneee eases

STATEMENT OF THE CASE

The Geergia minors’ access law, which is found at

1984 Georgia Laws 1495, Ga. Code Ann. §§ 16-12-102, et

ceq. (“the Act”), became effective on July 1, 1984. The Act

is 2 modest attempt to in some way restrict the exposure

to minors of materials harmful to them. An example of

such materials is Defendants’ Exhibit 1, which was

described by the Eleventh Circuit as follows:

Defendant's Exhibit 1, Human Digest (June

1984), found in a convenience store with no

restriction on in-store access by minors, would

be “harmful to minors” and thus subject to sec-

tion 16-12-103’s ban on sales to minors and dis-

play. The cover refers to several articles within

that are written from the juvenile perspective:

“*Why My Mom Loves Oral Sex!’ ”; “ ‘I Made

X-Rated Videos for Dad!’ ”; “ ‘Sex Slave Sis!’ ”;

and “ ‘My Anal Aunt!’ ”.

919 F.2d at 1505 n.22.

A number of municipalities and almost all states

have minors’ access laws.' American Booksellers

' See Amici Curiae Brief of the State of Georgia, et al.,

Appendix, Virginia v. American Booksellers Ass'n, 484 U.S. 383

(1988), which cites statutes of 48 states regulating the display

or exhibition of materials harmful to minors. In their brief,

Georgia and 19 other states urged the Court to note probable

jurisdiction of a Fourth Circuit decision striking the Virginia

minors’ access statute. American Booksellers Ass'n v. Virginia,

792 F.2d 1261 (4th Cir. 1986), vacated 488 U.S. 905 (1988).

Inasmuch as the Fourth Circuit has now reversed itself, Ameri

can Booksellers Ass'n v. Virginia, 882 F.2d 125 (4th Cir. 1989), and

all other recent circuit decisions have upheld minors’ access

laws, there is no present reason for Supreme Court interven-

tion.

Association and its kindred plaintiffs have for several

years doggedly pursued an unsuccessful national cam-

paign against such laws. See, e.g., American Booksellers

Ass‘n v. Virginia, 882 F.2d 125 (4th Cir. 1989) (upholding

Virginia minors’ access statute); American Booksellers Ass’n

v. Rendell, 481 A.2d 919 (Pa. Super. 1984) (upholding

Pennsylvania minors’ access statute). Attacks by other

plaintiffs on minors’ access laws have also been largely

unsuccessful. See, e.g., Upper Midwest Booksellers Ass’n v.

Minneapolis, 780 F.2d 1389 (8th Cir. 1985) (upholding Min-

neapolis minors’ access ordinance); M.S. News v. Casado,

721 F.2d 1281 (10th Cir. 1983) (upholding Wichita minors’

access ordinance).

Unlike plaintiffs’ statement in their petition, they did

not at the trial of this action present “extensive uncon-

tradicted” or “substantial evidence to support their con-

stitutional challenges.” (Petition at 9, 12). Nor are

plaintiffs correct in saying that defendants “presented no

evidence in the trial court controverting the material evi-

dence submitted by plaintiffs.” (/d.) Plaintiffs’ witnesses

offered no support to their case. For example, Norma

Klein and Patrick Conroy testified that, even based on

their flawed understanding that the Act permitted regula-

tion on the basis of isolated excerpts, they did not believe

their works to be subject to the Act. (R. IV at 113-14, 153,

155). Moreover, Bobbie West Alford, who showed no

understanding of the Act, testified that she did not

believe that the work about which she expressed concern,

“Cat on a Hot Tin Roof,” would be subject to regulation.

(Id. at 97-98). Instead of supporting plaintiffs’ position,

the testimony of these witnesses actually shows that the

Act would not have any effect on speech materials.

At trial, defendants submitted evidence showing that

the Act places a very small burden on affected establish-

ments. Rayford Collins, a Fulton County, Georgia, law

enforcement officer, testified that the sample of plaintiffs’

establishments he visited before the effective date of the

Act were already in compliance. (R. V at 19-30). Janice

Horton, a Georgia State Senator, testified regarding a

display of sexually explicit materials at a convenience

store in McDonough, Georgia. She testified that Defen-

dants’ Exhibit 1, which is mentioned above, along with

two other sexually explicit exhibits (Defendants’ Exhibits

2 and 3) were openly displayed with no restrictive signs

and within reach of children. (R. IV at 75-76).

Plaintiffs have in their petition described the journey

of this case through the lower federal courts and Georgia

Supreme Court. After a period of abstention under Rail-

road Commission of Texas v. Pullman Co., 312 U.S. 496

(1941), the district court declared the display provision

and library exemption of the Act unconstitutional. Ameri-

can Booksellers Ass’n v. Webb, 643 F. Supp. 1546 (N.D. Ga.

1986).2 As summarized by the Eleventh Circuit, the

2 During abstention, the Georgia Supreme Court resolved

adversely to plaintiffs a state constitutional issue they had

raised. 254 Ga. 399 (responding to certified questions). The

Georgia court also declined an open-ended request “to con-

strue the provisions in Act 1319, 1984 Ga. Laws 1495, which

have been challenged in this suit.” Jd. at 401. Due to the

anticipatory nature of the challenge and the absence of enforce-

ment facts, the court found “it to be inappropriate to establish

the parameters within which the Act may or may not be

operative.” Id. Plaintiffs’ repeated misrepresentations to this

Court that the Georgia Supreme Court refused to construe the

statute narrowly ill serve their credibility. (Petition at 8, 13).

district court “interpreted the statute to ‘reduce an adult’s

selection of reading materials to a book list suitable for a

fifth grade class.’” 919 F.2d at 1495. The district court

concluded that this drastic and unacceptable effect would

occur because: the Act covers “ ‘the predominate amount

of all of the adult reading material’ ”; the application of

the “harmful to minors” provision is determined by the

maturity of “most minors” including those 10 years old;

in order to comply with the Act a bookseller would be

required to perform the impossible task of reviewing “his

entire inventory”; and there are no readily available nar-

rowing constructions. 643 F. Supp. at 1549-55. Presaging

future developments, the district court conceded, how-

ever, that if the Act applied “only to material on the

fringe of protected expression,” id. at 1554, or “to mate-

rials inappropriate for minors approaching the age of

majority,” it might well be constitutional. Id. at 1556. See

also 919 F.2d at 1498 (noting district court’s concessions).

In a later order, the district court found the library

exemption not to be severable and struck the entire stat-

ute. American Bocksellers Ass’n v. Webb, 654 F. Supp. 503

(N.D. Ga. 1987).

On December 27, 1990, the Court of Appeals for the

Eleventh Circuit reversed the judgment of the district

court. Exercising independent appellate review,’ the court

held that under Pope v. Illinois, 481 U.S. 497 (1987), a

decision unavailable to the district court and which prob-

ably would have altered the district court’s conclusions,

there was a “dramatic[{] decrease[] [in] the amount of

> The parties agreed that the Eleventh Circuit should use

independent appellate review. 919 F.2d at 1498, 1498 n.10.

material actually covered by the ban on display and [in]

the indirect burden suffered by adults as a result.” 919

F.2d at 1505. Moreover, the court of appeals concluded

that readily available narrowing constructions further

reduced any burden on adult speech. 919 F.2d at 1508-09.

The Eleventh Circuit also disagreed with the district

court’s conclusion that the Act’s exemption of public

libraries is subject to strict scrutiny and therefore viola-

tive of the Equal Protection Clause. The court of appeals

summarized all of its holdings:

We find the statute is readily susceptible to a

narrowing construction that reduces the scope

of materials covered, produces only a slight bur-

den on adults’ access to protected material, and

fully comports with the First Amendment. We

also reverse the district court’s determination

that an exemption granted in the statute to

libraries is subject to strict scrutiny and violates

the Equal Protection Clause.

919 F.2d at 1495.

,

-

SUMMARY OF ARGUMENT

This case presents a facia] attack on the constitu-

tionality of the Georgia minors’ access obscenity statute.

Plaintiffs have challenged the statute prior to its construc-

tion or enforcement by Georgia courts. The statute is

designed to discourage premature exposure of minors to

materials harmful to them.

This statute is supported by two strong state inter-

ests. First, the states have a “ ‘compelling’ ” interest in

“ ‘safeguarding the physical and psychological well-being

of a minor.’” New York v. Ferber, 458 U.S. 747, 756-57

(1982) (cit. omitted). Second, the states have a substantial

interest in protecting the rights of parents to supervise

the development of their children. Ginsberg v. New York,

390 U.S. 629, 639 (1968). These state interests support

laws limiting not just the sale but also the display to

minors of material harmful to them.

Facial overbreadth challenges are disfavored. The

successful maintenance of such a challenge requires dem-

onstration that: (1) the statute “is not readily subject to a

narrowing construction by the state courts,” and (2) the

statute’s “deterrent effect on legitimate expression is both

real and substantial.” Erznoznik v. City of Jacksonville, 422

U.S. 205, 216 (1975).

The Eleventh Circuit correctly held that plaintiffs

failed to meet the test for facial overbreadth invalidation.

As other circuits and lower courts have held in review of

similar laws, the court of appeals held that the Act piaces

only a “slight burden on adults’ access to protected mate-

rial.” 919 F.2d at 1495. The court reached this conclusion

by applying Pope v. Illinois, 481 U.S. 497 (1987), which was

not available to the district court, to the Ginsberg-derived

definition of “harmful to minors.” The court recognized

that Pope does not permit regulation of material as long as

“any reasonable minor, including a seventeen-year-old,

would find serious value.” 919 F.2d at 1504-05. The Elev-

enth Circuit also held that the scienter requirement,

which punishes only “knowing|[]” displays, and the ready

availability of a construction permitting compliance by

use of “blinder racks” “dramatically decreases the

amount of material actually covered by the ban on dis-

play and the indirect burden suffered by adults as a

result.” 919 F.2d at 1506.

The Eleventh Circuit also correctly upheld the library

exemption against plaintiffs’ equal protection attack.

Consistently with other circuits, the court of appeals

employed the rational basis test. 919 F.2d at 1509-10. The

court correctly recognized that the exemption to this

obscenity statute for libraries is rationally related to the

states’ legitimate interest in controlling the commercial

distribution and display of obscene materials and the

states’ legitimate interest in protecting educational uses

of explicit materials. 919 F.2d at 1511-13.

Therefore, the decision of the Eleventh Circuit is

correct and plaintiffs’ petition should be denied.

ys

_

ARGUMENT

I. THE GEORGIA ACT IS SUPPORTED BY THE

STATES’ STRONG INTERESTS IN PROTECTING

MINORS FROM ACCESS TO MATERIALS HARM-

FUL TO THEM AND IN PROTECTING THE

RIGHTS GF PARENTS TO SUPERVISE THE

DEVELOPMENT OF THEIR CHILDREN.

Minors’ access laws are supported by two weighty

state interests. First is the compelling state interest in

protecting minors from obscene materials. Second, the

states have a substantial interest in protecting the rights

of parents to supervise the development of their children.

This Court has repeatedly affirmed that states have a

strong interest in protecting the welfare of minors. In New

York v. Ferber, 458 U.S. 747 (1982), the Court concluded:

“It is evident beyond the need for elaboration that a

State’s interest in ‘safeguarding the physica! and psycho-

logical well-being of a minor’ is ‘compelling.’ ” Id. at

756-57 (cit. omitted) (emphasis added). In Ginsberg v. New

York, 390 U.S. 629 (1968), the Court acknowledged ” ‘scci-

ety’s transcendent interest in protecting the welfare of

children.’ ” 390 U.S. at 640 (cit. omitted) (emphasis

added). The Court made it clear that this interest is

“independent” from parents’ interests in their children.

Id. at 639-40.

In addition to the states’ compelling interest in the

welfare of minors, states have a substantial interest in

protecting the rights of parents to supervise the develop-

ment of their children. In Ginsberg, the Court recognized

that parents’ right “to direct the rearing of their children

is basic in the structure of our society.” 390 U.S. at 639.

The Court went on to hold that the minors’ access law in

question there was supported by this interest. Id. See also

Bolger v. Youngs Drug Products, 463 U.S. 60, 73 (1983)

(describing the governmental interest in “aiding parents’

efforts to discuss birth control with their children” as

“substantial”) (emphasis added).

In Ginsberg, the Court affirmed a conviction under a

New York statute for the sale to a 16-year-old boy of two

“ ‘girlie’ ” magazines which were “harmful to minors” as

defined by the statute. 390 U.S. at 631-33. This result was

reached even though the magazines were “not obscene

for adults.” Id. at 634. The Court distinguished the New

York statute in question there from the Michigan statute

struck down in Butler v. Michigan, 352 U.S. 380 (1957),

which forbade the distribution to adults of materials

believed to have an adverse effect on minors. 390 U‘S. at

634-35.

The states’ interests in the protection of minors from

sexually explicit materials and preservimg the rights of

parents as recognized and upheld in Ginsberg extend

beyond the sale to minors of objectionable materials and

include the display of such material in public places. The

Court characterized the New York statute, which it

upheld, as denying minors “access” to harmful material,

390 U.S. at 636 (emphasis added), restricting their right

“to judge and determine for themselves what sex material

they may read and see,” id. at 636-37, a regulation of “the

availability of sex material to minors,” id. at 639 (emphasis

added), and a restraint on “minors’ exposure to such mate-

rial.” Id. (emphasis added). See also id. at 641.

Since Ginsberg, the Court has repeated the view that

the states’ legitimate interests extend to all exposure to

minors of materials obscene for them. In FCC*v. Pacific

Foundation, 438 U.S. 726 (1978) (plurality opinion), the

Court summarized Ginsberg as holding that “[b]ook-

stores and motion picture theatres, for example, may be

prohibited from making indecent material available to

children.” Id. at 749 (emphasis added). See also Interstate

Circuit, Inc. v. City of Dallas, 390 U.S. 676, 690 (1968)

(“because of its strong and abiding interest in youth, a

State may regulate the dissemination to juveniles of, and

their access to, material objectionable as to them”)

(emphasis added); Erznoznik v. Jacksonville, 422 U.S. 205,

212 (1975); Miller v. California, 413 U.S. 15, 18-19 (1973);

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1957).

10

It is thus clear that the states’ legitimate interests in

protecting minors from harmful materials extend to all

means of public access including display. Obviously, the

Georgia Act would not fully express these interests if it

forbade only the sale to minors of harmful materials but

allowed other forms of dissemination such as display.

Il. THIS COURT HAS IMPOSED STRICT LIMITA-

TIONS ON THE FACIAL INVALIDATION OF

STATE STATUTES FOR OVERBREADTH.

An overbroad statute is one that sweeps protected

First Amendment activity into its scope. This Court has

often made clear that the normal procedure for handling

a threat by a state or federal statute to constitutionally

protected activity is invalidation of the particular applica-

tion — not striking the statute on its face. For example, in

Jenkins v. Georgia, 418 U.S. 153 (1974), the Court reversed

a conviction under the Georgia adult obscenity statute for

exhibiting the movie “Carnal Knowledge,” but did not

facially invalidate the statute. See also Brockett v. Spokane

Arcades, 472 U.S. 491, 502-05 (1985) (citing cases); Broad-

rick v. Oklahoma, 413 U.S. 601, 613-14 (1973) (citing cases).

In order to limit use of the doctrine to serious threats

to First Amendment values, this Court has issued a

number of restrictions. It has frequently warned that

facial invalidation for overbreadth is “strong medicine”

which should be used “sparingly and only as a last

resort.” Broadrick, 413 U.S. at 613. Defendants submit that

11

courts should be especially scrupulous in their observa-

tion of the limitations on facial invalidation for over-

breadth when, as in the case before this Court, the

challenge is made prior to enforcement. In these cases,

the states or other authorities have had no opportunity to

eliminate by enforcement or construction any potential

unconstitutional applications.

In circumscribing use of the facial overbreadth doc-

trine, this Court has ruled that the existence of valid

applications will normally save a statute from facial

invalidation. See, e.g., Parker v. Levy, 417 U.S. 733, 760

(1974) (describing the Court’s “reluctance to strike down

a statute on its face where there were a substantial

number of situations to which it might be validly

applied”); Ferber, 458 U.S. at 773 (upholding child por-

nography statute “whose legitimate reach dwarfs its

arguably impermissible applications”). Thus, the possi-

bility of one or several unconstitutional applications is

not sufficient to invalidate a statute. Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)

(“the mere fact that one can conceive of some impermiss-

ible applications of a statute is not sufficient to render it

susceptible to an overbreadth challenge”). Every statute

is probably susceptible to some unconstitutional applica-

tion. This Court has said:

“Without a substantial overbreadth limitation,

review for overbreadth would be draconian

indeed. It is difficult to think of a law that is

utterly devoid of potential for unconstitu-

tionality in some conceivable application.”

New York v. Ferber, 485 U.S. at 772 n.27 (cit. omitted). See

also Broadrick, 413 U.S. at 618 (statute upheld although it

12

“may be susceptible of some other improper applica-

tions”). Expressing the same principle, the Court has also

suggested that potential unconstitutional applications of

a state statute are not a basis for invalidation so long as

the statute reaches a “central core of constitutionally reg-

ulable conduct.” Ferber, 458 U.S. at 771 n.26. See also

Broadrick, 413 U.S. at 615-18.

This Court has imposed two basic requirements for

facial overbreadth invalidation. In Erznoznik, the Court

held: “[A] state statute should not be deemed facially

invalid unless [1] it is not readily subject to a narrowing

construction by the state courts, and [2] its deterrent

effect on legitimate expression is both real and substan-

tial.” 422 U.S. at 216 (cits. omitted). Note that the ele-

ments are conjunctive: both must be present in order for a

state statute to be facially invalidated. Id. at 217. The

Eleventh Circuit quoted and followed this Court’s admo-

nition that, when considering narrowing constructions,

“‘It]he key to application of this principle is that the

statute must be “readily susceptible” to limitation.’ ” 919

F.2d at 1500 (quoting Virginia v. American Booksellers Ass’n,

484 U.S. 383, 397 (1988)).

The requirement of “substantial” overbreadth applies

4

with particular force

‘‘where conduct and not merely

speech is involved.’ ” Broadrick, 413 U.S. at 615, (quoted

in Ferber, 458 U.S. at 770). As the Eleventh Circuit con-

cluded minors’ display laws regulate “ ‘conduct plus

speech’ ” and substantial overbreadth must therefore be

shown for invalidation. 919 F2d at 1500; accord M.S.

News, 721 F.2d at 1289.

13

One corollary of the above-mentioned prerequisites

to facial overbreadth invalidation is that the presence of

an earlier state court decision narrowing the scope of a

statute is not essential to its withstanding constitutional

challenge. See Frisby v. Schultz, 487 U.S. 474, 481-83 (1988)

(construing and upholding language of municipal picket-

ing ordinance previously unconstrued by state courts);

Cole v. Richardson, 405 U.S. 676 (1972) (construing previ-

ously unconstrued language of a Massachusetts loyalty

oath statute in a manner so as to uphold it); Rose v. Locke,

423 U.S. 48, 51-52 (1975) (holding that previous applica-

tions of a statue are not “a prerequisite to a statute’s

withstanding constitutional attack”); Time, Inc. v. Hill, 385

U.S. 374, 397 (1966) (refusing to invalidate on its face a

New York privacy statute and stating that the Court

“confidently expect[ed] that the New York courts [would]

apply the statute consistently with the constitutional

command”); IDK, Inc. v. County of Clark, 836 F.2d 1185,

1191 (9th Cir. 1988) (“If the courts of a state could adopt a

construction of its statute that eliminates the constitu-

tional defects, federal courts should defer.”)

The Eleventh Circuit found “no relevant distinction” in

the test for facial overbreadth invalidation and “the constitu-

tional standards applicable to a time, place, and manner

restriction.” 919 F.2d at 1502. The court concluded:

In evaluating the display ban under either test, the

crucial inquiry, at least in this case, is whether the

restriction on adults’ access to protected speech is

unnecessarily burdensome or “significant,” or,

stated differently, whether alternative modes of

adult access are unduly restricted.

Id.

14

II. THE COURT OF APPEALS CORRECTLY HELD

THAT, FOR REASONS EITHER UNAVAILABLE

TO OR NOT RECOGNIZED BY THE DISTRICT

COURT, THE ACT PLACES ONLY A MINOR

BURDEN ON PROTECTED ADULT SPEECH.

The Eleventh Circuit correctly held that the Act

places only a minor burden on protected adult speech.

The court of appeals found the “slight burden on adults’

access to protected material” to be “far less than the

district court suggests.” 919 F.2d at 1495, 1506. Similar

conclusions have been reached by other courts reviewing

minors’ access laws. For example, in M.S. News, the Tenth

Circuit concluded that “the proscription on display of

material harmful to minors does not unreasonably restrict

adults’ access to material which is not obscene as to

them.” Id. at 1288. In support of its conclusion, the court

pointed out: “[A]dults may still have some access to

materials not obscene as to them, and they may purchase

such material.” Id. at 1289. And in Upper Midwest, the

Eighth Circuit held that the Minneapolis display ordi-

nance whic! it sustained did not substantially interfere

with adult free speech:

We believe that the ordinance in the instant

case is one that is “carefully limited,” Miller, 413

U.S. at 24, and that does not unduly burden the

First Amendment rights of adults. See Butler, 352

U.S. at 383; cf. Erznmoznik, 422 U.S. at 213. Any

burden here is the result of the permissible reg-

ulation of material that is obscene as to minors.

The restriction in relation to adults is merely an

incidental effect of the permissible regulation

and is minimal in its impact. Adults are still free

to request a copy of restricted material to view

from a merchant or to peruse the material in

adults only bookstores or in segregated sections

15

of ordinary retail establishments. More signifi-

cantly, adults are still able to view any of the

material in a free and unfettered fashion by

purchasing it. The continued availability of

these materials to adults for purchase under the

ordinance weighs strongly in favor of the ordi-

nance’s constitutionality.

Id. at 1395. See also American Booksellers Ass'n v. Rendell,

481 A.2d at 941 (“although adults may be inconvenienced

in their perusal or purchase of graphic inaterials harmful

to minors, though not obscene for adults, adult access to

these materials will not significantly be impaired” and

“any inhibitory effect on dissemination to adults does not

render the display provision [of the Pennsylvania minors’

access law] constitutionally defective, given the state’s

legitimate interest in shielding children from these mate-

rials”).

This Court has also recognized on several occasions

that for the sake of protecting minors minimal effects on

protected adult speech are constitutionally acceptable. See

Bethel School District v. Fraser, 478 U.S. 675, 684 (1986)

(“This Court’s First Amendment jurisprudence has

acknowledged limitations on the otherwise absolute

interest of the speaker in reaching an unlimited audience

where the speech is sexually explicit and the audience

may include children”); FCC v. Pacifica Foundation, 438

U.S. 726, 729 (1978) (plurality opinion) (upholding the

power of the FCC to regulate for the protection of chil-

dren a radio broadcast which was “indecent but not

obscene”).

In a straightforward application of Pope v. Illinois, 481

U.S. 497 (1987), the Eleventh Circuit held that under the

Act materia! could not be found obscene for minors as

16

long as “any reasonable minor, including a seventeen-

year-old, would find serious value.” 919 F.2d at 1504-05.

Of course, Pope was not available to the district court

when it declared the Georgia Act unconstitutional for

overbreadth. In concluding that “Georgia courts would

interpret section 16-12-102 in light of Pope,” the court of

appeals cited Hunter v. State, 257 Ga. 571 (1987), in which

the Georgia Supreme Court recognized Pope to be appli-

cable to the Georgia Act. 919 F.2d at 1504. The Eleventh

Circuit also followed the Fourth Circuit and Virginia

Supreme Court in their understanding of the effect of

Pope. 919 F.2d at 1504-05 (citing American Booksellers Ass'n

v. Virginia, 882 F.2d at 127 (quoting Commonwealth v.

American Booksellers Ass'n, 236 Va. 168, 372 S.E.2d 618, 624

(1988))).

Petitioners suggest that the failure of the Georgia

Supreme Court to answer a certified question seeking

construction of the display provision of the Georgia Act

distinguishes this case from the Virginia case and dictates

that the Georgia statute be stricken as unconstitutional.

For a number of reasons, petitioners’ argument is invalid.

Most obviously, Pope was not available at the time the

Georgia Supreme Court was requested to construe the

Act. Moreover, the Georgia Supreme Court was not asked

any specific questions about the meaning of the Georgia

statute but rather simply how it “construe[d] the provi-

sions in Act 1319, 1984 Ga. Laws 1495, which have been

challenged.” 744 F.2d at 786. This question is far different

from the specific constructions requested of the Virginia

Supreme Court. As the Eleventh Circuit pointed out, the

Georgia Supreme Court simply expressed its reluctance

to construe the statute “in the absence of enforcement

17

facts, finding instead that the challenge was anticipa-

tory.” 919 F.2d at 1497. But most importantly the effect of

Pope on the Ginsberg-derived definition of minors

obscenity as repeated in the Georgia Act, Virginia statute,

and all other minors’ access laws, is not a matter of state

statutory construction but rather federal constitutional

law. And, as discussed above, the absence of earlier state

court decisions narrowing the scope of a state statute is

not fatal to constitutionality, particularly where as here

the statute does not have a significant effect on protected

adult speech.

As the Eleventh Circuit concluded, the burden on

adult speech is also “far iess than the district court sug-

gests” when one gives full effect to the requirement of the

Act that displays be made “knowingly,” § 16-12-102(2),

-103, before they are subject to regulation. 919 F.2d at

1506. The district court had erroneously concluded that in

order to comply with the Act a bookseller would be

required to review “his entire inventory” and in effect

pre-screen all new purchases. 643 F.Supp. at 1553. The

Eleventh Circuit properly concluded that the district

court’s confusion on this issue led it to overestimate the

effect of the Act on adult speech. 919 F.2d at 1506. As this

Court has explained, it is a statute without a knowledge

or scienter element that requires a bookseller “to make

himself aware cf the contents of every book in his shop.”

Smith v. California, 361 U.S. 147) 153-54 (1959) (striking a

Los Angeles obscenity ordinance containing no scienter

element and thus imposing strict liability).4

4 Although the prosecution need not prove knowledge

that materials are obscene, this Court has consistently held that

(Continued on follow‘ng page)

18

Defendants maintain that in view of the minimal

burden on adult speech as is evident from the application

of Pope and the Act’s scienter requirement, the consider-

ation of narrowing constructions is unnecessary. In

Erznoznik, this Court held that, regardless of the ready

availability of narrowing constructions, a state statute

may not be invalidated for facial overbreadth unless “its

deterrent effect on legitimate expression is both real and

substantial.” 422 U.S. at 216.

Assuming, however, the necessity of considering nar-

rowing constructions of the Georgia Act, it is manifest

that the Eleventh Circuit properly recognized the use of

blinder racks to be a nonburdensome manner of compli-

ance. Although more onerous methods of compliance can

be imagined, just as hypothetical unconstitutional appli-

cations of any statute can be imagined, the court con-

cluded that “blinder racks do not ‘exhibit, expose, or

display in public’ material subject to section

16-12-103(e).” 919 F.2d at 1508. In reaching this result, the

court applied the ordinary meanings of the words of the

Act. The court of appeals further concluded:

Therefore, under our reading of section

16-12-103(e), it is not necessary that booksellers

physically segregate material placed behind

(Continued from previous page)

no o1.e may be convicted of an obscenity offense unless he is

aware of the “contents[,] . . . character and nature of the

materials.” Hamling v. United States, 418 U.S. 87, 123 (1974). Just

as in all other states, obscenity statutes in Georgia are applied

consistently with this constituiional requirement. See Sewell v.

State, 238 Ga. 495, 496 (1977), app. dism., 435 U.S. 982 (1978),

citing Hamling, 418 U.S. 87.

19

blinder racks from material accessible to minors.

Since the statute is “readily susceptible” to such

a reading, we need not consider broader inter-

pretations of the requirements for compliance

with section 16-12-103(e). Virginia v. American

Booksellers Ass'n, Inc., 484 U.S. at 397-99, 108 S.

Ct. at 645 (1988). Placing the relatively small

amount of reading materials subject to section

16-12-103 behind biinder racks only slightly bur-

dens adults’ access to such material. Blinder

racks do not impose a “substantially overbroad”

regulation on “conduct plus speech.” (See the

discussion above at pp. 1499-1500, 1502). Adults

may peruse and purchase the material without

restriction. Under either the balancing test for

regulations on material protected to one group

but not another, or the test for the constitu-

tionality of a time, place, and manner regula-

tion, (see the discussion above p. 1502), the

burden on adults’ access to material protected as

to them is constitutionally insignificant and

therefore permissible. See M.S. News, 721 F.2d at

1288-89 (relying in part on blinder racks excep-

tion to uphold statute against facial challenge).

919 F.2d at 1508-09. Plaintiffs have argued that recogni-

tion of a readily available construction under which the

use of blinder racks avoids a “display in public” consti-

tutes rewriting the Act. This argument is obviously falla-

cious.

The Eleventh Circuit decision this Court is asked to

review is fully consistent with all other pertinent circuit

decisions. The Fourth, Eighth, and Tenth Circuits have

upheld minors’ access laws against facial overbreadth

challenges. American Booksellers Ass'n v. Virginia, 882 F.2d

125 (4th Cir. 1989); Upper Midwest Booksellers Ass'n v.

20

Minneapolis, 780 F.2d 1389 (8th Cir. 1985); M.S. News Co. v.

Casado, 721 F.2d 1281, 1288 (10th Cir. 1983).

The dissent below by District Judge Pointer to the

majority’s view of the overbreadth issue was based on a

misunderstanding of the Act. Although District Judge

Pointer agreed “we should assume that Georgia would

adopt a narrow construction of the section,” he concluded

that the Act would have a broader affect on adult speech

than the majority found because, according to Judge

Pointer, the Act regulates matter that “contains” explicit

material. 919 F.2d at 1515. Judge Pointer apparently failed

to understand that the Act, although some of its provi-

sions overlap, only regulates material that “taken as a

whole” satisfies the prurience and lack of serious value

elements. Ga. Code Ann. § 16-12-102(1)(A), (C). It is sig-

nificant that even the district court recognized that no

material is subject to regulation under the Act unless

“taken as a whole” it satisfies the definition of “harmful

to minors.” 590 FKSupp. at 688. Evidently realizing Judge

Pointer’s misunderstanding of this aspect of the Act,

petitioners do not suggest to this Court that Judge

Pointer’s analysis of the overbreadth issue should pre-

vail.

Plaintiffs do, however, make a curious argument

against the constitutionality of the display provision of

the Act. They propose that the “harmful to minors” defi-

nition in the Act be interpreted to regulate “material

deemed ‘harmful’ to any minor.” (Petition at 19)

(emphasis in original). Plaintiffs thus propose that the

Act be construed to regulate material which, meeting the

other prongs of the obscenity test, also lacks serious value

21

for a five year old child. If the Act required this construc-

tion, defendants would concede its unconstitutionality.

As the Eleventh Circuit recognized, however, the Act

does not require such a contrived construction. In effect,

plaintiffs argue that the Act should be construed in isola-

tion from Pope, without regard to the Act’s scienter

requirement, and without recognition of obvious narrow-

ing constructions, in order that it may be held unconstitu-

tional. (Petition at 15). Although ambivalent on the point,

plaintiffs complain to this Court that under the Eleventh

Circuit decision the Act is “a duplicative and meaningless

statute which encompasses little or nothing more than

that covered by Georgia’s general obscenity laws.” (Peti-

tion at 17). Of course, the states are not forbidden by the

Constitution from enacting laws having no significant

effect on private conduct. And plaintiffs’ “open season”

view that state laws should be broadly construed for the

purpose of striking them is in derogation of all precedent

and reason.

IV. THE COURT OF APPEALS DID NOT ERR IN

UPHOLDING THE LIBRARY EXEMPTION

UNDER THE RATIONAL BASIS TEST OF EQUAL

PROTECTION.

The Act contains in § 16-12-104 an exemption for

public and school libraries. The Eleventh Circuit correctly

held that this legislative classification is not subject to

strict scrutiny under the Equal Protection Clause. 919 F.2d

at 1509. The court then correctly held that the library

exemption does not violate the Equal Protection Clause

because it is rationally related to the states’ legitimate

interest in controlling the commercial distribution and

22

display to minors of obscene materials and the states’

legitimate interest in protecting educational uses of

explicit materials. 919 F.2d at 1511-13.5 See Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 57 (1973) (recognizing

“legitimate state interests al stake in stemming the tide of

commercialized obscenity”).

In a 1988 decision, this Court emphasized the diffi-

culty of a successful equal protection challenge to a legis-

lative classification. In New York State Club Ass'n v. City of

New York, 108 S. Ct. 2225, 2236 (1988), the Court held:

Legislative classifications, however, are pre-

sumed to be constitutional, and the burden of

showing a statute to be unconstitutional is on

the challenging party, not on the party defend-

ing the statute: “those challenging the legislative

judgment must convince the court that the legis-

lative facts on which the classification is appar-

ently based could not reasonably be conceived

to be true by the governmental decisionmaker.

(cit. sated! te a case such as this, the plaintiff

can carry this burden by submitting evidence to

show that the asserted grounds for the legisla-

tive classification lack any reasonabie support in

fact, but this burden is nonetheless a consider-

able one. [cit. omitted]

Id. at 2236 (emphasis in original).

> The Eleventh Circuit also noted a Seventh Circuit sug-

gestion that library exemptions to obscenity statutes may

“serve the purpose of shielding libraries from groundless com-

plaints that they are disseminating obscene materials.” 919 F.2d

at 1511 n.38 (citing Kucharek v. Hanaway, 902 F.2d 513 (7th Cir.

1990)).

23

It is important to understand that almost all

obscenity statutes contain exemptions. defenses, or pre-

sumption exceptions applying to various classes of per-

sons, institutions, organizations, and categories of

activities. Such measures are found in adult obscenity

statutes, minors’ access laws, child pornography statutes,

and other obscenity regulations. A number of states pro-

vide exemptions or defenses for such educational uses as

represented by libraries, schools, and universities.

Although libraries are probably included in all educa-

tional exemptions and defenses, obscenity statutes of 32

states recognize specific exemptions for

libraries.® If strict scrutiny is to be applied to all of these

6 Ark. Stat. Ann. § 5-68-308/c) (1987); Colo. Rev. Stat.

§ 18-7-503(1)(a) (1990); Del. Code Ann. tit. 11, § 1365(k)(3)

(1987); Ga. Code Ann. § 16-12-104 (1988); Idaho Code

§§ 18-1517(1)(d), -4102(B) (1987); Ill. Rev. Stat. ch. 38,

§§ 11-20.1(b)(2), 11-21(e)(1) (1979 & Supp. 1990); Ind. Code

Ann. § 35-49-3-4(2) (Burns 1985); Iowa Code Ann. § 728.7

(1979); Kan. Stat. Ann. §§ 21-4301(4)(b), -4301a(2)(b),

-4301a(2)(c), -4301a(2)(d) (1988); La. Rev. Stat. Ann.

§ 14:106(D)(1) (West 1986); Me. Rev. Stat. Ann. tit. 17,

§ 2911(2)(A) (1983 & Supp. 1990); Mass. Ann. Laws ch. 272,

§§ 28, 28C, 29B(e) (Law Co-op. 1980 & Supp. 1991); Mich.

Comp. Laws Ann. §§ 752.367(a)(ii), 722.676(d) (1991 & Supp.

1990); Minn. Stat. Ann. § 617.295(a) (West 1987); Miss. Code

Ann. § 97-29-107(1)(c) (Supp. 1990); Neb. Rev. Stat.

§§ 28-810(4), -815(1) (1989); Nev. Rev. Stat. Ann. § 201.237

(1986); N.H. Rev. Stat. Ann. § 649-A:4 (1986); N.M. Stat. Ann.

§ 30-37-5.D (1989); N.Y. Penal Law §§ 235.10, 263.20(2) (McKin-

ney 1989); N.C. Gen. Stat. §§ 14-190.15(c) (2) (1986); N.C. Gen.

Stat. § 19-20(b)(3) (1983); N.D. Cent. Code

§§ 12.1-27.1-03.1(2)(c), -27.1-11, -27.2-05(2) (1985 & Supp. 1989);

(Continued on following page)

24

statutes, the courts have much work to do. As everyone

knows, strict scrutiny is “strict in theory and fatal in

fact.”

In applying the rationa! basis test of equal protection

to the library exemption, the Eleventh Circuit followed

the overwhelming preponderance of authority. If this case

involved fully protected First Amendment interests, a

strict scrutiny standard would certainly be appropriate.”

Plyler v. Doe, 457 U.S. 202, 216-17 (1982). Except in a very

few cases, strict scrutiny has not been applied in equal

protection review of regulations of any category of

(Continued from previous page)

Ohio Rev. Code Ann. §§ 2907.32(B), .321(B)<1), .322(B)(1),

-323(A) (Anderson Supp. 1990); Or. Rev. Stat. §§ 167.085(2), .089

(1990); S.C. Code Ann. § 16-15-385(c)(2) (Law Co-op. Supp.

1990); S.D. Codified Laws Ann. §§ 22-24-31(4), -37(2) (1988);

Utah Code Ann. §§ 76-10-1224, -1226 (1990 & Supp. 1990); Vt.

Stat. Ann. tit. 13, § 2805(b)(3), (c)(3) (Supp. 1990); Va. Code

Ann. §§ 18.2-383(1), -391.1(1) (1988); Wash. Rev. Code

§§ 9.68.015, 9.68.100 (1988); Wis. Stat. Ann. § 944.21(8)(a), (b)(5)

(Supp. 1990); Wyo. Stat. § 6-4-302(c)(ii)(1988).

The Model Penal Code contains an affirmative defense if

“dissemination was restricted to .. . . institutions or persons

having scientific, educational, governmental cr other similar

justification for possessing obscene material.” Model Penal

Code Sec. 251.4(3)(a) (Proposed Official Draft 1962). A number

ot the above-cited statutes also incorporate this provision.

? On page 23 of the petition, plaintiffs misstate that “the

State itself conceded that if the display proscription affects

First Amendment protections, strict scrutiny would be applica-

ble and the exemption would be unconstitutional.” Defendants

never made any statement resembling this in any of the lower

court briefs.

a

25

obscene materials. In Young v. American Mini Theatres, 427

U.S. 50 (1976), the Court's plurality opinion appears to

apply a reasonable basis test to a zoning regulation of

erotic, but non-obscene, material. Id. at 71-72. See aiso

Hart Book Stores v. Edmisten, 612 F.2d 821, 831 n.13 (4th

Cir. 1979) (“The Mini Theatres plurality apparently consid-

ered that clzssification of sexually explicit materials

would invoke only minimal scrutiny, 427 U.S. at 70-73.”)

In Kucharek v. Hanaway,. 9C2 F.2d 513 (7th Cir. 1990), the

Seventh Circuit applied the rational basis test of equal

protection in upholding an exemption to a Wisconsin

obscenity statute for libraries, schools, and contract

printers. Id. at 520-21. The Ninth Circuit has reached a

similar conclusion. In Ripplinger v. Collins, 868 F.2d 1043

(9th Cir. 1989), the Ninth Circuit applied the rational

basis test and rejected an equal protection challenge to an

exemption to both adult obscenity and minors’ access

provisions in an Arizona statute. Id. at 1050.

The Tenth Circuit has reached the same conclusion.

In M.S. News, 721 F.2d 1281, that court employed the

rationality test in upholding an exemption in a Wichita

minors’ access law for noncommercial displays or distri-

butions. The Tenth Circuit convincingly pointed out the

different incentives involved in commercial and non-com-

mercial uses of covered materials:

Commercial enterprises have the economic

incentive to make sales and are therefore more

likely to press the display and dissemination of

material harmful to minors. Hence making a

distinction between commercial and noncom-

mercial enterprises is sufficiently grounded in a

legitimate state interest.

26

Id. at 1291-92. Although the Georgia Act does not exempt

as many non-commercial uses as the Wichita ordinance,

the Eleventh Circuit correctly recognized that its library

exemption does in fact distinguish commercial from non-

commercial uses. 919 F.2d at 1511. Moreover, in Piepen-

burg v. Cutler, 649 F.2d 783 (10th Cir. 1981), the Tenth

Circuit upheld an affirmative defense in a Utah obscenity

statute for educational and similar uses. Id. at 785-87.

Numerous other lower court decisions have reached

the same conclusion. See e.g., American Booksellers Ass'n v.

Rendell, 481 A.2d 919, 942 (Pa. Super. 1984); Long v. 130

Market St. Gift & Novelty, 440 A.2d 517, 523-24 (Pa. Super.

1982).

Plaintiffs cite the Eighth Circuit’s decision in Upper

Midwest, 780 F.2d 1389, as creating a circuit conflict on

equal protection. review of exemptions to obscenity stat-

utes. (Petition at 25 n.5). In Upper Midwest, the district

court applied strict scrutiny in striking exemptions to a

Minneapolis minors’ access ordinance for libraries,

schools, and several other categories of institutions and

individuals. The district court held, however, that the

remainder of the ordinance was constitutional and sever-

able. The district court’s use of strict scrutiny to strike the

exemptions was not appealed to or reviewed by the

Eighth Circuit. 780 F.2d at 1391. Noting that the exempted

uses were probably already protected through the serious

value prong of the obscenity test, the Eighth Circuit did

review and uphold the district court’s decision on sever-

ability. Id. at 1398-99. Thus, the Eighth Circuit’s decision

does not create a circuit conflict. As is evident from the

above discussion, all recent circuit decisions have applied

27

the rational basis test in upholding exemptions and

defenses similar to that presented here.

It would indeed be anomalous to strike on equal

protection grounds exemptions and defenses for educa-

tional and non-commercial uses of sexually explicit mate-

rial. This would result in the criminalization of more

speech than the Georgia Legislature has chose to crimi-

nalize. As the Eleventh Circuit stated, “Finally, striking

down such an exemption would hinder rather than pro-

mote robust speech.” 919 F.2d at 1512. See also Ripplinger,

868 F.2d at 1050 (striking an obscenity statute exemption

“would not serve the first amendment policy of encour-

aging and furthering free expression”); Kucharek, 902 F.2d

at 520 (noting the curiosity of challenging an exemption

on the ground of its “leniency”).

,’

v

CONCLUSION

For the above-stated reasons, the Court should deny

plaintiffs’ petition. As concluded by the Eleventh Circuit,

the Georgia minors’ access law, when understood in light

of this Court’s decision in Pope, the scienter provision,

and readily available narrowing constructions, has only

an incidental and minimal effect on protected adult

speech. This effect is not substantial and not a basis for

facial overbreadth invalidation. As the Fourth, Eighth,

Tenth and now Eleventh Circuits have recognized,

minors’ access laws at most work a slight inconvenience

to a limited amount of adult speech while preserving

ultimate access by adults. Moreover the decision by the

28

Georgia legislature to protect public libraries from

obscenity prosecutions is eminently rational and not in

conflict with the Equal Protection Clause. This conclusion

by the Eleventh Circuit is also consistent with all perti-

nent decisions of other circuits.

Respectfully submitted,

MicHaet |. Bowers

Attorney General of Georgia

Georce M. WeavER

Special Assistant Attorney

General of Georgia

Counsel of Record