Opposition Brief — Kucharek v. Hanaway

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—_—_—

“Supreme Court, U.S.

No. 90-608 Tt ¢ o

eC 0

In The piec-—«SsSs«9

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED STATES CER*

October Term, 1990

WILLIAM KUCHAREK; SHANGRI-LA ENTERPRISES,

INC., doing business as DENMARK BOOKSTORE;

PARADISE ONE, INC., doing business as PARADISE

VIDEO STORE; and GEM BOOKS, INC., doing

business as PURE PLEASURE II BOOKSTORE,

Petitioners,

Vv.

DONALD J. HANAWAY, Attorney General of the

State of Wisconsin,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION

DONALD J. HANAWAY

Attorney General

THOMAS J. BALISTRERI

Assistant Attorney General

Attorney of Record for

Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-1523

TABLE OF CONTENTS

SUMMARY OF ARGUMENT ...... .

ARGUMENT

THE WISCONSIN OBSCENITY STATUTE

DRAWS THE LINE BETWEEN

UNPROTECTED MATERIAL WHICH IS

TOLERATED, AND UNPROTECTED

MATERIAL WHICH IS PROHIBITED,

WITH CONSTITUTIONALLY

SUFFICIENT SPECIFICITY.

A. The Language Of The

Statute, Considered In

The Context Of Its

History And Purpose,

Shows That It Applies To

Material Which Describes

Or Shows The Actual

Commission Of Enumerated

Sexual Acts.

B. The Difficulty In

Determining Whether

Individual Material In

Fact Describes Or Shows

The Actual Commission Of

Sexual Acts Does Not Make

The Legal Boundary Of The

Proscribed . Conduct’ Any

Less Clear.

Page

Cn This Court Should Allow

The Wisconsin Courts To

Construe The New

Obscenity Statute In A

Manner Consistent With

The Agreed Intent Of The

Legislature. oe

II. THE DIFFERENT STATUTORY

TREATMENT OF DIFFERENT CLASSES

OF DISTRIBUTORS OF OBSCENE

MATERIAL DOES NOT DEPRIVE THE

MEMBERS OF ANY CLASS OF EQUAL

PROTECTION. ee Ge ee gy 6=6|«S

A. The Constitutional

Validity Of The Statutory

Classifications Must Be

Assessed By Applying The

Traditional Rational

Basis Test. aaereemeore! 4: ee

B. The Exemption For Schools

And Libraries Is

Rationally Related To The

Legitimate State Interest

Ion Protecting

Institutions Of Learning

From Harassment By

Persons Seeking To Use

The Obscenity Law To

Censor Works With

Serious Value. i<-A<<-« 2

| iii

Page

Cc. The Exemption For

Contract Printing Is

Rationally Related To The

State's Legitimate

Interest In Protecting

The Free Flow Of Ideas

From All Socio-Economic

Strata Of Society. oe a

D. Any Exemption From The

Cbscenity Statute Found

To Be Unconstitutional

Could Be Severed, Leaving

A Fully Operative Valid

Law. Sl Ee dt ee ee ae ee

NE es ae a a

CASES CITED

Alaska Airlines v. Brock,

eeu U.S. 676 (1987) ....«-« - 60-61

Almodovar v. Reiner,

S32 F.20 1138 (9th Cir. 1987) ... 38

| Babbitt v. United Farm Workers

| National Union,

| om wee wee C1979} 6s ct tw tee el CU

| Bowen v. Gilliard,

| 483 U.S. 587 (1987) . f é - 44-45

Boyce Motor Lines v. United States,

wee Sams Gor (1952) 4. 9. 6 « « « « 26<27

Butler v. United States

Dept. of Agriculture,

wae F.26 409 (5th Cir. 1987) .... 2

Page

Caban v. Mohammed,

S41 0.8. Bee tiSTe} «2 es we tee we SS

Carey v. Brown,

Se, U.8. 496 (39G0)} «© « © « 2 wo se 6

City Investing Co. v. Simcox,

633 F.2d 56 (7th Cir. 1980) .. . 35-36

City of Cudahy v. DeLuca,

49 Wis. 2d 90,

2Ga Wamcme ore Cire) «§ « te ee ee

City of Urbana ex rel. Newlin v. Downing,

43 Ohio St. 3d 109,

$39 N.8.26 i160 (1969) . 25, 27, 429, 32

Clements v. Fashing,

457 U.S. 957 (1982) .. 41, 42, 44, 45

Colorado River Conservation District

v. United States,

ee Se eS | a ee

Commissioner of Internal Revenue v. Engle,

464 U.S. 206 (1984) 22

Commonwealth v. Ferro,

372 Mass. 379,

361 Wi. 26 i2o8 (1977). + « + «°° 4S, Ba

County of Allegheny v. Frank Mashuda Co.,

200 U.8. Bee tafor) «© © ee ee eh .hlUCUCU SO

Dixson v. United States,

O65 (66 Se tae) ee 6 soe Ee ee

Exxon Coro. v. Governor of Maryland,

O37 Us 37 4297 Oh. 6 oe 2. ee ee ee

Page

400 East Baltimore Street, Inc. v. State,

49 Md. App. 147,

431 A.2d 682 (1981),

cert. denied,

455 U.S. 940 (1982)

4000 Asher, Inc. v. State,

290 Ark. &,

716 S.W.2d 190 (1986)

Hamling v. United States,

418 U.S. 87 (1974)

INS v. Chadha,

462 U.S. 919 (1983)

Kois v. Wisconsin,

408 U.S. 229 (1972)

43, 33

43, 53

Long v. 130 Market Street Gift and Novelty,

294 Pa. Super. 383,

440 A.2d 517 (1982)

M.S. News Co. v. Casado,

721 F.2d 1281 (10th Cir.

Maynard v. Port Publications,

98 Wis. 2d 555,

297 N.W.2d 500 (1980)

Miller v. California,

413 U.S. 45 (2973)

43, 53-54

sR 3 ee 54

Sms

56, 57-58

15, 16, i6, 26,

4], £0, £29, Ws

32, '33, 3b, €2

Monterey Coal Co. v. Federal Mine

Moore v. Sims,

442 U.S. 415 (1979)

Safety and Health Review Comm.,

743 F.2G SOS (7th Cis. 3960) 3 se eee

Page

‘

Pack v. City of Cleveland,

1 Ohio St. 3d 129,

438 N.B.26 456 (1962) << ss ss sus @

Parham v. Hughes,

4423 U.S. 347 (a0FS). 6 «sow “eee ee

Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1 (1987) .... . . 37, 39-40

Piepenburg v. Cutler,

649 F.2d 783 (10th Cir. 1981) ... 43

Pollitt v. Connick,

596 F. Supp. 261 (E.D. La. 1984) .. 43

Regan v. Taxation With Representation,

461 U.S. 560 €3900) « 2 « «© « «6 Ge, -e@e

Ripplinger v. Collins,

868 F.2d 1043 (9th Cir. 1989) ... 43

Roth v. United States,

354 U.S. 476 (1957) =» £o ke ee eee

Skyywalker Records, Inc. v. Navarro,

739 F. Supp. 578 .

(3.0. Pia. B90? «<6 oe SS we ee Se ee

Speiser v. Randall,

357 U.S. SiS (2996): « soe es Be eee

State v. Bakel,

11 Kan. App. 2d 4,

71k P.Be FSO C29GG) © ao: 6 eee Ce ee eee

State v. Hunt,

660 S.W.2d 513

(Tenn. Crim. App. 1983),

cert. denied,

466 U.S. 944 (1984) ee ee ee a

vii

State v. Lesieure,

i2Zi R.I. 859,

404 A.2d 457 (1979)

State v. Martin,

719 S.W.2d 522 (Tenn. 1986)

State v. Popaenz,

112 Wis. 2d 166,

332 N.W.2d 750 (1983)

State v. Princess Cinema, Inc.,

96 Wis. 2d 646,

292 N.W.2d 807 (1980) . 14, 40,

State v. Roth,

115 Wis. 2d 163, 339 N.W.2d 807

(Ct. App. 1983) "ae ee

State v. Vonesh,

135 Wis. 2d 477, 401 N.W.2d 1790

(Ct. App. 1986) PI a ae

State ex rel. Hammermill Paper

Co. v. LaPlante,

58 Wis. 2d 32,

205 N.W.2d 784 (1973)

Tanner v. United States,

483 U.S. 107 (1987)

Turner v. State,

76 Wis. 2d l,

250 N.W.2d 706 (1977)

U.T., Inc. v. Brown,

457 F. Supp. 163

(W.D.N.C. 1978)

Page

43-44

46,

viii

Page

United States v. Freeman,

808 F.2d 1290

(8th Cir.), cert. denied,

CE Sy 8 me,

United States v. Wurzbach,

oe eee Cae). «6 es ee ee ee

Waldron v. McAtee,

723 F.2d 1348

(Fem Cix. 2903) . . -« « 34-35, 36-37

Ward v. Illinois,

a a a & a nr

STATUTES CITED

Wis. Stat. §

944.21(1) (1987-88) .. 22, 46, 50, 56

944.21(2)(c) Soe ee oe ee ee eee

A ee i ee a ce eb ee

a a SE a ee eer ee eae a

Seema ertels. «<<. «+ 0s See we ee

Re Te DS ee fo iy. a

ee iy “eg ye ee ee eo ee ee

See eae et?) 6 os «es 8 eS Se Ss eee ee

Se a) whe? ee 6 ee ee ee

Comer eaee) 6s ee eee A eS eS Ree

OG6.. 24040) --4 5 6 oe ke we Se ee ee SS

OTHER AUTHORITIES CITED

American Heritage Dictionary

(2G coilege ed. 1962) ... 17,

1 Attorney General's Commission on

Pornography, Final Report (1986)

Friendly, Federal Jurisdiction: A

General View (1973) ...

Milwaukee Journal,

September 10, 1989

Milwaukee Journal,

September 26, 1988

Webster's Ninth New Collegiate

Picecsonery (idee) « « « « 6 UDF,

Page

18,

47-48

18,

No. 90-608

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

WILLIAM KUCHAREK; SHANGRI-LA ENTERPRISES,

INC., doing business as DENMARK BOOKSTORE;

PARADISE ONE, INC., doing business as PARADISE

VIDEO STORE; and GEM BOOKS, INC., doing

business as PURE PLEASURE II BOOKSTORE,

Petitioners,

Vv.

DONALD J. HANAWAY, Attorney General of the

State of Wisconsin,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION

SUMMARY OF ARGUMENT

I. The newly adopted Wisconsin obscenity

statute draws the line between unprotected

material which is tolerated, and unprotected

material which is prohibited, with

constitutionally sufficient specificity.

The statute does not depart in any

constitutionally significant way from the test

for obscenity enunciated by this Court in

Miller v. California. It faithfully follows

the prescribed formula, except that it does

not apply to sexual conduct which is simply

simulated.

Although the statute could have been

written more precisely in this respect, the

Wisconsin Legislature's choice to proscribe

material which "describes or shows" the

"commission" of specified sexual acts, without

mentioning simulated acts, in contrast to the

corresponding terminology in Miller which

includes simulations, demonstrates that the

legislature intended to limit the scope of the

state law to material which involves the

actual commission of sexual conduct.

This conclusion is corroborated by the

legislative history of the provision.

Contemporaneous legislative memoranda reveal

that the word "simulation" was deliberately

deleted from earlier drafts of an obscenity

statute to change the definition of obscenity

to include only the actual commission of

sexual conduct. This purpose was verified by

a member of the conference committee which put

together the ultimately enacted statute, who

stated that elimination of simulated conduct

was one of the compromises that allowed the

diverse factions in the legislature to finally

agree on a mutually acceptable obscenity law

after eight years of wrangling.

A restrictive interpretation is also

consistent with the manifested purpose of the

legislature that the statute be used to combat

the obscenity industry, but never to harass or

censor materials with serious value.

The legislature's decision to limit the

application of the obscenity statute to the

actual commission of sexual conduct does not

create further statutory ambiguity.

The pertinent question is not whether a

writing, recording, picture or film itself is

a simulation of sexual conduct, but whether

the sexual conduct described or shown in these

media is simulated or real. The statutory

line between legal and illegal sexually

explicit material is the line already existing

between reality and pretense, a line the

publishing industry itself uses to distinguish

categories of material.

The problem, consequently, is not in

Giscerning the line drawn by the_ statute

between unprotected material which is

prohibited, and unprotected material which is

tolerated, but in determining in individual

instances whether specific material falls on

one side or other of the line.

The difficulty in determining the side on

which particular material falls, however, is

no reason to hold the language of an obscenity

statute too ambiguous to define the offense.

Nor is it unfair to impose a risk on one who

goes dangerously close to the line that he may

cross it. The mere fact that persons may

reach different conclusions about the same

material does not deny the right to fair

notice about whether it is forbidden.

One who nears the line drawn by the

Wisconsin statute, moreover, is already well

into the realm of material that could be

considered criminal under established first

amendment principles. A person who chooses to

skate out to the edge of ice that has long

since become constitutionally thin has little

about which to complain.

In any event, it is not problematic to

compel individual purveyors of sexually

explicit material to make the same assessments

the publishing trade routinely makes of

whether the material describes or shows the

actual commission of sexual acts. And it is

no more problematic to compel anyone to make

this assessment than to force them to assess

whether their material appeais to a prurient

interest, is patently offensive under

contemporary community standards, or has

serious value for society.

And ultimately, any lack of clarity about

the content of material must be resolved in

favor of the disseminator because of the

state's burden of proof in penal cases.

Applying these principles to the examples

posed by the petitioners poses littie

difficulty.

It is not the function of the Supreme

Court to mandate regulatory schemes for the

States, or to question the wisdom of the

schemes for regulating obscenity they have

chosen. A state statute will be sustained if

it does not violate the constitution.

The due process problem with the

Wisconsin obscenity statute is simply that it

does not declare as clearly as it could that

it applies exclusively to the actual

tt ome

commission of sexual conduct. But the words

carefully used in the statute, considered in

the context of the history and purpose of the

provision, show that the legislature intended

to impose that limitation on the law. And the

parties to this litigation agree that the

obscenity statute is limited to actual sexual

conduct.

Under these circumstances, the existing

trivial ambiguity is no resson for this Court

to declare a newly enacted state statute

unconstitutional. Before taking such a

drastic step, the federal courts should give

the courts of Wisconsin a reasonable

opportunity to clarify the scope of the

statute.

One type of case almost universally

recognized as appropriate for abstention is

that of a state statute, not yet construed by

the state courts, which is susceptible of one

construction that would render it free from

federal objection, and another that would not.

Here, however, both possible constructions of

the statute are free from constitutional taint

since the first amendment permits the states

to proscribe both actual and simulated obscene

acts. A state court need only authoritatively

decide which kind of obscene acts\ are

proscribed. This case, consequently, is even

more appropriate for federal abstention than

the recognized paradigm.

This Court should deny review, and allow

the state courts to restrictively construe the

state obscenity law the way the legislature

intended, and thereby avoid the objection that

it is unconstitutionally vague.

II. The different statutory treatment of

different distributors of obscene material

does not deprive the members of any class of

equal protection.

The constitutional validity of the

statutory classifications must be assessed by

applying the traditional rational basis test.

The exemption for schools and libraries

is rationally related to the legitimate state

interest in protecting institutions of

learning from harassment by persons seeking to

use the obscenity law to censor works with

serious value by the threat of prosecution.

The Wisconsin Legislature was as much

concerned about protecting the free flow of

ideas and preventing censorship of serious

works as it was about combatting the obscenity

industry. In Wisconsin, as elsewhere in the

nation, there is periodic pressure on schools

and libraries to purge their collections of

constitutionally protected material which some

consider morally or otherwise offensive. And

the lawmakers could justifiably fear that,

although obscenity litigation wculd not likely

succeed, these institutions might succumb to a

mere threat of litigation to avoid public

controversy, lingering hostility and

expenditure of scarce resources. Because

unwarranted threats could be aimed at both

commercial and noncommercial activities of

these institutions, both kinds of activity

could reasonabiy be deemed to need protection.

The legislature could determine, on the

other hand, that schools and libraries deal so

little in material which is actually obscene,

and engage in so little commercial activity of

any kind, that the impact of their exemption

on the efforts to combat the obscenity

industry would be negligible. The legislature

could reasonably conclude, therefore, that an

effective balance between the battle against

obscenity and the danger that protected

material could be an innocent casualty of the

battle requires that all activities of schools

and libraries be insulated from efforts to

misuse the obscenity statute for censorship

and harassment.

The same balance does not obtain, though,

for book and video dealers since they are more

likely to be involved in the commercial

dissemination of material which is obscene,

and are less prone to harassment -= and

censorship by overzealous citizens.

The cases which have considered similar

justifications for exempting schools’ and

libraries from the sanctions of obscenity

statutes have upheld them as rational means of

protecting artistically and educationally

valuable material from public censorship.

None of the several authorities which have

been unable to find a rational basis for such

exemptions have considered the justification

expressed by the Wisconsin Legislature.

The exemption for contract printing is

rationally related to the state's legitimate

interest in protecting the free flow of ideas

from all socio-economic strata of society.

This exemption is not based merely on the

fact that printers who occupy this segment of

the trade lack editorial control over the

material they reproduce, but on the fact that

their declination to exercise editorial

control allows them to print prepared

materials inexpensively, giving low and

moderate income persons access to a means of

disseminating their protected speech. If

liability for failure to inspect were imposed

on these printers, their services would

necessarily become more expensive, effectively

putting printing beyond the reach of the poor.

The kind of low cost, offset service

offered by mostly local contract printers is

not likely to be used by the obscenity

industry to mass-produce their glossy

magazines. The legislature could have

decided, therefore, that it would be better to

tolerate the printing of no more than a

modicum of obscene material, and thereby

preserve the free flow of ideas from those

with marginal access to any media, than to

prohibit the printing of all obscene material,

and thereby censor the dissemination of

legitimate ideas by the less economically

advantaged of this state.

The legislature could have concluded,

consequently, that it was necessary to

Classify contract printers differently from

others lacking editorial control over

material, such as store clerks or movie

projectionists, who did not share their unique

role in making the first amendment right to

disseminate ideas a practical reality for

those who would otherwise be silenced by their

poverty.

Any exemption from the obscenity statute

— to - unconstitutional, moreover, could

be severed, leaving a fully operative, valid

law.

ARGUMENT

I. THE WISCONSIN OBSCENITY STATUTE

DRAWS THE LINE BETWEEN

UNPROTECTED MATERIAL WHICH IS

TOLERATED, AND UNPROTECTED

MATERIAL WHICH IS PROHIBITED,

WITH CONSTITUTIONALLY

SUFFICIENT SPECIFICITY.

A. The Language Of The

Statute, Considered In

The Context Of Its

History And Purpose,

Shows That It Applies To

Material Which Describes

Or Shows The Actual

Commission Of Enumerated

Sexual Acts.

It is important to keep in mind that this

litigation involves a state obscenity statute

which has not yet been enforced, and which the

state courts haVe never had an opportunity to

construe. That statute is the product of a

legislative re reached after eight

years of wrangling, following the invalidation

of its predecessor in State v. Princess

Cinema, Inc., 96 Wis. 2d 646, 292 N.W.2d 807

(1980).

The attorney general recognizes that the

newly cast statute, not surprisingly, still

has some rough edges. But the prohibitions

intended by the Wisconsin Legislature are not

so cryptic as to require a federal court to

invalidate their agreement as

unconstitutionally vague before the Wisconsin

courts have applied their clarifying rasp.

The statute does not depart in any

constitutionally significant way from the test

for obscenity enunciated in Miller Vv.

California, 413 U.S. 15, 24 (1973). Compare

Wis. Stat. § 944.21(2)(c) and (d) (1987-88).

The major difference between them is only that

the statute does not go as far as Miller would

permit, see id., 413 U.S. at 25, in banning

certain kinds of offensive sexual material.

The bettsen appear to fully agree that

the statute faithfully follows the formula of

Miller, except that it does not apply to

sexual conduct which is simply simulated. It

applies, rather, to "a writing, picture, sound

recording or film which . . . describes or

shows . . . the commission of" specified

sexual acts. § 944.21(2)(c) and (e).

Although the statute could have been

written more precisely in this respect, the

kind of material the Wisconsin Legislature

intended to prohibit, and the kind it intended

to tolerate, can reasonably be discerned _

comparing this language with the selected

terminology in Miller the drafters chose to

change. |

In Miller, the Court ruled that the

states could define sexual conduct to include

both actual and simulated sexual acts. i

i353 U.S. et 25. Any reference to simulated

acts is conspicuously absent, however, from

the Wisconsin statute's definition of sexual

conduct. See § 944.21(2)(e).

Miller said that material is

constitutionally obscene when it “depicts or

describes" sexual conduct in a patently

offensive way. id, , @33 VU.8. 88 2&6. The

statute says that material is proscribed as

obscene when it "describes or shows" sexual

conduct in a patently offensive way. §

944.21(2)(c)2 and (d)2. The difference,

though slight, is important.

“"Depict" means "represent," which in turn

means to take the place of or portray, to

serve as a symbol, counterpart or image.

American Heritage Dictionary at 383, 1049 (2d

college ed. 1982); Webster's Ninth New

Collegiate Dictionary at 340, 1000 (1984).

Webster's Ninth New Collegiate Dictionary at

1000. "Depict, " therefore, connotes’ the

- notion of simulation, of mere playacting.

"Show, “ on the other hand, means to cause

to be seen or viewed, to manifest, reveal or

demonstrate. American Heritage Dictionary at

1134; Webster's Ninth New Collegiate

Dictionary at o. ) "Show" connotes

displaying the real thing.

By substituting "show" for "depict,"

consequently, the legislature indicated that

it intended to limit the scope of the state

law to materials which involve real rather

than simulated sexual conduct.

The same inference can reasonably be

drawn from another change in the Miller

phraseology. Miller suggested that sexual

conduct could be defined in terms of

"representations or descriptions" of

particular sexual acts. Id., 413 U.S. at 25.

As noted before, the word "“representation"

connotes simulation.

The Wisconsin obscenity statute does not

use that word in its definition of sexual

conduct. Instead it defines sexual conduct to

mean the "commission" of particular sexual

acts. § 944.21(2)(e).

"Commit" means to do, perform or

perpetrate, to carry into action. American

Heritage Dictionary at 298; Webster's Ninth

New Collegiate Dictionary at 265. Its use in

the Wisconsin definition suggests that sexual

conduct means particular sexual acts which are

actually done or performed.

The parties' agreed reading of the

statutory language is corroborated by the

scant but instructive legislative history of

the provision.!

In a memorandum to State Representative

Marlin Schneider dated March Z, 1988, Pam

Russell, a staff attorney with the Wisconsin

Legislative Council, described the changes in

the then-pending obscenity bill, 1987 Senate

Se ae made by a substitute amendment

drafted by the council staff. Appendix at

1-2.* Among other things, Russell noted that

‘If the words of a statute could be

interpreted to support either of two meanings,

a court should turn to legislative history to

clarify the legislature's intent. Dixson Vv.

United States, 465 U.S. 482, 491 (1984).

7A memorandum prepared by a staff member

of the legislative council to accompany

legislation drafted by the staff .s indicative

of legislative intent. See State v. Vonesh,

135 Wis. 2d 477, 486, 401 N.W.2d 170, 175 (Ct.

App. 1986).

the definition of obscenity was changed by

"{[dJelet[{ing] from the definition of sexual

conduct the term ‘simulation of' so that only

depictions of actual commission of the various

types of sexual conduct would be covered."

. ee . ee

A memorandum to State Senator Walter John

Chilsen from Jane Beyer, an analyst with the

Legislative Fiscal Bureau, describes the same

change in the scope of the proposed law.

Appendix at 3-6.

Although the particular bill to which

these memos referred never became law, the

absence of the word “simulated” from the,

obscenity statute which was enacted in a

special session of the legislature three

months later, see § 944.21(2)(e), convincingly

implies, in light of the contemporaneous

explanations of the effect of this omission,

that the legislature intended that only the

"actual commission of the various types of

sexual conduct would be covered" by the

enacted law.

This conclusion was verified by State

Representative Robert Welch, a member of the

conference committee which put together the

ultimately enacted statute, who stated in a

later affidavit that elimination of simulated

sexual conduct was one of the compromises

which allowed the diverse factions in the

Wisconsin Legislature to finally agree on a

mutually acceptable obscenity law. Appendix

at 7-8.’

This restrictive interpretation of the

Gefinition of obscenity is consistent with the

manifested purpose of the legislature to have

‘The remarks’ of a single conferee

concerning the interpretation of a statute are

entitled to weight when consistent with the

language and history of the law, Monterey Coal

Co. v. Federal Mine Safety and Health Review

Comm., 743 F.2d 589, 596 (7th Cir. 1984) (and

cases cited), although post passage remarks

are worthy of less weight than contemporaneous

statements. Butler v. United States Dept. of

Agriculture, 826 F.2d 409, 414 n.6 (5th Cir.

1987).

the obscenity statute "used primarily to

combat the obscenity industry [but] never

- . . used for harassment or censorship...

against materials or performances’ having

serious artistic, literary, political,

educational or scientific value." §

944.21(1).‘ Since artistically meritorious

material is more likely to portray only

simulations of sexual conduct, while actual

sexual acts are likely to be committed in

plainly pornographic works, the legislature

could well have chosen, in the spirit of

compromise, to exclude simulated conduct to

reduce the prospect of employing the obscenity

statute to censor serious works of art.

And even if the intent of the legislature

to limit the scope of the statute was not

‘If several interpretations of a statute

are possible, a reviewing court should find

the one which is most harmonious with the

manifested purpose of the legislature,

considering the circumstances of the enactment

of the legislation. Commissioner of Internal

Revenue v. Engle, 464 U.S. 206, 217 (1984).

adequately demonstrated by the process of

statutory construction, the rule of lenity

would apply to compel a strict construction.

Tanner _ v. United States, 483 U.S. 107, 131

(1987); Dixson v. United States, 465 U.S. 482,

491 (1984).

B. The Difficulty In

Determining Whether

Individual Material In

Fact Describes Or Shows

The Actual Commission Of

Sexual Acts Does Not Make

The Legal Boundary Of The

Proscribed Conduct Any

Less Clear.

’

The legislature's decision to limit the

application of the obscenity law to the

"actual commission of the various types of

sexual conduct" “ges not create further

statutory ambiguity.

It is true, as the petitioners argue,

that in one view "all verbal descriptions of

sexual conduct are simulations." Petition for

Writ of Certiorari at 8. By the same token,

though, so are photographs and films. Neither

words nor pictures are themselves sexual acts.

Both are merely implements for capturing the

images of acts, and conveying them to those

who have not observed their occurrence.

This reflection on the metaphysics of

description is not relevant to the issue on

this petition, however, because the Wisconsin

obscenity statute does not focus on the

medium, but on the message. The pertinent

question is not whether the writing or

recording or picture or film itself is a

simulation of sexual conduct, but whether the

sexual conduct described Or shown in the

writing, receedind: picture or film is

simulated or real.

Similarly, the necessary question is not

merely whether the deeds described or shown by

the material are actually sex acts of the kind

enumerated by the _ state law, instead of

innocuous conduct, but whether the material

describes or shows the actual commission of

those acts, instead of simply simulating them.

The line adopted by the legislature

between legal and illegal sexually explicit

material is the line already existing between

reality and pretense. Furthermore, it is the

natural line already adopted by the publishing

industry itself between what it calls “male

sophisticate" material and what it calls

"explicit" material. City of Urbana ex rel.

Newlin v. Downing, 43 Ohio St. 3d 109, 539

N.E.2d 140, 149 (1989).

The problem is not in discerning the line

drawn by the statute between unprotected

material which is prohibited, and unprotected

material which is tolerated, but in

determining in individual instances whether

specific material falls on one side or the

other of the Sait line.

Obviously there will be particular

situations™in which it will be difficult to

determine whether the material describes or

Shows persons really performing sexual acts,

and is therefore forbidden, or only the

pretended performance of sexual acts, and is

therefore allowed. The Court has consistently

held, however, that lack of such precision

does not render obscenity statutes

unconstitutionally vague. Hamling v. United

States, 418 U.S. 87, 111 (1974).

"Wherever the law draws a line thneze will

be cases very near each other on opposite

sides." United States v. Wurzbach, 280 U.S.

396, 399 (1930). "'"That there may be

marginal cases in which it is difficult to

determine the side of the line on which a

particular fact situation falls is no

sufficient reason to hold the language [of an

obscenity statute] too ambiguous to define a

criminal offense."'" Hamling § v. United

States, 418 U.S. at 111 (quoting Roth v.

United States, 354 U.S. 476, 491-92 (1957)).

Accord Miller v. California, 413 U.S. at 28

n.10. "Nor is it unfair to require that one

who deliberately goes perilously close to an

area of proscribed conduct shall take the risk

that he may cross the line." Boyce Motor

Lines v. United States, 342 U.S. 337, 340

(1952).

"The mere fact juries may reach different

conclusions as to the same material does not

mean that constitutional rights are abridged."

Miller v. California, 413 U.S. at 26 n.9. The

mere fact that prcesecutors, police or the

purveyors of the material themselves may reach

different conclusions about it does not mean

that the constitutional right to fair notice

is denied. See id.

It must be remembered, moreover, that the

line drawn by the Wisconsin statute is not

between protected and unprotected expression,

but merely between two forms of unprotected

obscenity. See City of Urbana ex rel. Newlin

v. Downing, 539 N.E.2d at 149. See generally

Miller v. California, 413 U.S. at 25 (sexual

conduct may be defined to include both actual

and simulated acts). One who nears the line

drawn by the Wisconsin statute, consequently,

is already far into territory that could

appropriately be considered criminal. By

drawing the line of proscription well within

the realm of obscenity, the legislature has

significantly eliminated any conceivable

unfairness to those who choose to skate out to

the edge of ice that has long since become

constitutionally thin.

If the petitioners think that the reality

or simulation of the sexual conduct is "hardly

the type of fact that should determine

criminal liability," Petition For Writ of

Certiorari at 9, they are completely free

under the statutory scheme to draw the line

for their own purposes, as Miller did, to

include both actual and simulated acts. Then

they never need worry about whether their

obscene books and videos are the kind which

are tolerated because the obscene conduct is

only simulated, or the kind which are

proscribed because the obscene conduct is

actually committed.

But certainly it is not problematic to

compel particular purveyors of sexually

explicit material to make the same assessments

that the publishing trade routinely makes of

whether their wares describe or show the

actual commission of sexual acts. Cf. City of

Urbana ex rel. Newlin v. Downing, 539 N.E.2d

at 149.

And certainly it is no more problematic

to compel purveyors of sexually explicit

material to assess factually whether their

wares describe or show the actual commission

of sexual acts than to force them to assess

judgmentally whether or not the material

appeals to a prurient interest, is patently

offensive under contemporary community

standards, or has serious value for society.

See generally Miller v. California, 413 U.S.

at 24 (stating test for obscenity). Yet the

compulsion of those assessments does not

offend the requirement of fair notice. Id. at

And ultimately, any lack of clarity

regarding the reality of the sexual conduct in

a particular case must be resolved in favor of

the person alleged to have violated the law by

disseminating material describing or showing

the actual commission of sexual conduct. The

State of Wisconsin must prove every element of

a criminal offense beyond a reasonable doubt,

Turner v. State, 76 Wis. 2d 1, 10, 250 N.W.2d

706, 711 (1977), and every element of a civil

offense having a criminal counterpart by

clear, satisfactory and convincing evidence.

City of Cudahy v. DeLuca, 49 Wis. 2d 90, 93,

181 N.W.2d 374, 375 (1970). If it does not

appear to the required degree of certitude

that material describes or shows the actual

commission of sexual conduct, no one can be

punished for disseminating obscene material.

See Miller v. California, 413 U.S. at 26.

Applying these principles to the examples

posed by the petitioners presents little

difficulty.

A recording such as 2 Live Crew's As

Nasty as They Wanna Be plainly would not be

proscribed since it merely makes references to

sexual parts and practices. See Skyywalker

Records, Inc. v. Navarro, 739 F. Supp. 578,

991-92 (S.D. Fla. 1990). Although the

recording "depicts sexual conduct in graphic

detail,” id. at 592, it does not "describe"

the "actual commission" of the acts to which

it refers.

On the other _ hand, an unartistic,

offensively prurient "play-by-play account of

[an] author's recollection of sexual

intercourse" he actually committed, see Kois

v. Wisconsin, 408 U.S. 229, 231 (1972), would

be prohibited.

Pictorial depictions of sexual acts which

do not unequivocally show that the acts are

actually being committed because portions of

the bodies of the participants are

undiscernible or obscured, could not be

)

prosecuted. See City of Urbana ex rel.

v. Downing, 539 N.E.2d at 149.

An obscenity statute construed to apply

only to the actual commission of sexual

conduct is not unconstitutionally vague.

eS. This Court Should Allow

The Wisconsin Courts To

Construe The New

Obscenity Statute In A

Manner Consistent With

The Agreed Intent Of The

Legislature.

This Court has repeatedly emphasized that

its function is not to mandate for the states

specific schemes regulating obscenity. Ward

v. Illinois, 431 U.S. 767, 769 (1977); Miller

vw. Caiitarnia, 413 U.S. at 23. The examples

given in Miller, 413 U.S. at 25, of material a

state could define as obscene were only that.

Ward v. Illinois, 431 U.S. at 773. And the

states remain free to define obscenity less

inclusively than the constitution allows. See

id. at 774.

Nor should this Court consider the wisdom

of adopting a scheme less inclusive than

Miller suggested. See, @.G., Caban _ v.

Mohammed, 441 U.S. 380, 392 n.13 (1979). The

due process clause does not empower a federal

court to weigh the wisdom of state

legislation. Exxon Corp. v. Governor of

Maryland, 437 U.S. 117, 124 (1978). A statute

is presumed to be valid, and will be

sustained, regardless of its wisdom, if it

does not violate the constitution. E.g., INS

v. Chadha, 462 U.S. 919, 944 (1983).”

The due process problem with the

obscenity statute as presently written is only

that it does not declare as clearly as it

could that it applies exclusively to the

actual commission of sexual conduct.

This is not to concede that the line

drawn by the Wisconsin Legislature was unwise.

Politically, it was Solomonic. Any line can

look unwise, moreover, when similar situations

falling immediately on each side are compared.

Considering the legislative purpose to protect

even arguably serious works, the line was

drawn in an appropriate place.

But as explained previously, the words

carefully used in the statute, considered in

the context of the history and purpose of the

provision, show that the Wisconsin Legislature

intended to impose that limitation on the

scope of the law. And the parties to this

litigation agree that the statute is limited

to actual sexual conduct.

Under these circumstances, the existing

ambiguity is no reason for any federal court,

much less the highest one, to declare a newly

enacted state statute unconstitutional.

Before taking Such a drastic step, the federal

courts should give the courts of Wisconsin a

reasonable opportunity to authoritatively

Clarify the reach of the new law.

The doctrine of abstention has _ its

detractors, but also vigorous defenders, and

after falling into judicial disfavor two

decades ago, is once again solidly

established. Waldron v. McAtee, 723 F.2d

1348, 1351 (7th Cir. 1983) (and authorities

collected).

Even now, of course, abstention from the

exercise of federal jurisdiction is the

exception rather than the rule. City

Investing Co. v. Simcox, 633 F.2d 56, 60 (7th

Cir. 1980) (quoting Colorado River Water

U.S. 800, 813 (1976)). But abdication of the

duty to decide cases can be justified in

exceptional circumstances in which resort to

the state courts would clearly serve an

important countervailing interest. Id.

(quoting Colorado River Water Conservation

District v. United States, 424 U.S. at 813,

and County of Allegheny v. Frank Mashuda Co.,

360 U.S. 185, 188-89 (1959)).

"'The paradigm of the "special

circumstances" that makes abstention

appropriate iS a case where the

challenged state statute is

susceptible of a construction by the

state judiciary that would avoid or

modify the necessity of reaching a

federal constitutional question.'

Kusper v. Pontikes, 414 U.S. 51, 54,

94 S.Ct. 303, 306, 38 L.Ed.2d 260

(1973); see Zwickler v. Koota, 389

U.S. 241, 249, 88 S.Ct. 391, 396, 19

L.Ed.2d 444 (1967); Harrison v.

NAACP, 360 U.S. 167, 176-177, 79

$.¢t. 3023, i600, 3 &.88.28 4152

(1959); Railroad Comm'n v. Pullman

Co,, Ji2 v.88. 696, 61 $.Ct. G63, 85S

L.Ed. 971 (1941). Of course, the

abstention doctrine ‘contemplates

that deference to state court

adjudication only be made where the

issue of state law is uncertain.'

Harman v. Forssenius, 380 U.S. 528,

534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d

50 (1965). But when the state

statute at issue is 'fairly subject

to an interpretation which will

render unnecessary or substantially

modify the federal constitutional

question,’ id., et $35, 85 S.Ct. at

1182, abstention may be required ‘in

order to avoid unnecessary friction

in federal-state relations,

interference with important state

functions, tentative decisions on

questions of state law, and

premature constitutional

adjudication,’ id., at 534, 85 S.Ct.

at 1181."

Id. (quoting Babbitt v. United Farm Workers

National Union, 442 U.S. 289, 306 (1979)).

""One type of case almost universally

recognized aS appropriate for abstention is

that of a state statute, not yet construed by

the state courts, which is susceptible of one

construction that would render it free from

federal constitutional objection and another

that would not.'" Waldron v. McAtee, 723 F.2d

at 1352 (quoting Friendly, Federal

Jurisdiction: A General View, 93 (1973)).

The federal courts should avoid adjudicating

such a statute unconstitutional because that

determination would be "“'predicated on a

reading of the statute that is not binding on

state courts and may be discredited at any

time -- thus’ essentially rendering’ the

federal-court decision advisory and_ the

litigation underlying it meaningless. '"

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11

(1987) (quoting Moore v. Sims, 442 U.S. 415,

428 (1979)). "'Such a decision not only is a

waste of judicial resources but provokes a

needless collision between state and federal

power.'" Waldron v. McAtee, 723 F.2d at 1352

(quoting Friendly at 93).

The present circumstances offer an even

more compelling case for abstention than the

recognized lady and the tiger paradigm.

Unlike that paradigm, a court which is

afforded the opportunity to construe this

statute would not be required to choose

between one constitutionally felicitous and

another constitutionally perilous alternative.

The first amendment permits the states to

proscribe patently offensive representations

of actual or simulated sexual conduct. Miller

v. California, 413 U.S. at 25.° To avoid the

constitution objection, a construing court

need only determine whether the Wisconsin

Statute applies exclusively to one kind of

"Because the present constitutional

objection implicates only unprotected

material, abstention would not raise concerns

about interference with the plaintiffs' first

amendment’ rights. See generally, e.g.,

Almodovar v. Reiner, 832 F.2d 1138, 1140-41

(9th Cir. 1987) (discussing propriety of

abstention when statute affecting first

amendment rights might be narrowed to make it

inapplicable to protected activity).

proscribable conduct, or to both. Unlike the

paradigmatic situation, therefore, either

possible construction would solve the federal

constitutional problem.

In these circumstances it is not just

reasonably possible, but virtually certain

that any subsequent construction of the

statute by the state courts would discredit a

federal decision that the statute was

unconstitutionally vague, rendering that

declaration advisory and this litigation

meaningless. Meanwhile, though, that

tentative deciaration would provoke

unnecessary friction between federal and state

sovereigns, and interfere with the ability of

the state to enforce its criminal laws.

When federal plaintiffs fail to present

their constitutional objections to an

unconstrued state statute in the state courts,

the tederal courts "should assume that state

procedures will afford an adequate remedy, in

the absence of unambiguous authority to the

contrary." Pennzoil Co. v. Texas, Inc., 481

U.S. at 15.

The Wisconsin courts consider it their

duty to construe legislative acts attacked as

unconstitutional, State v. Roth, 115 Wis. 2d

163, 166, 339 N.W.2d 807, 808 (Ct. App. 1983)

(quoting State ex rel. Hammermill Paper Co. v.

LaPlante, 58 Wis. 2d 32, 46-47, 205 N.W.2d

784, 792-93 (1973)), including statutes

attacked as unconstitutionally vague. See,

e.g., State v. Popanz, 112 Wis. 2d 166, 172,

332 N.W.2d 750, 753 (1983).’

"In State v. Princess Cinema, Inc., the

Wisconsin Supreme Court refused to further

construe the former obscenity statute because

that enactment contained no standards’ for

enforcement, and the court believed it was

inappropriate to establish a complete

regulatory scheme through the _ process of

judicial construction. Id., 96 Wis. 2d at

659-61, 292 N.W.2d at 814-15. While it was

unwilling to completely redraft a naked

obscenity statute in the face of prolonged

legislative silence, however, the court

reaffirmed its obligation to interpret a

comprehensive legislative effort to regulate

obscenity. Id.

This Court should allow the Wisconsin

courts to undertake the task that, in the

circumstances presented here, is appropriately

theirs to perform. It should allow them to

construe the Wisconsin obscenity statute, as

it indisputably should be construed, to avoid

the objection that it is unconstitutionally

vague.

II. THE DIFFERENT STATUTORY

TREATMENT OF DIFFERENT CLASSES

OF DISTRIBUTORS OF OBSCENE

MATERIAL DOES NOT DEPRIVE THE

MEMBERS OF ANY CLASS OF EQUAL

PROTECTION,

A. The Constitutional

Validity Of The Statutory

Classifications Must Be

Assessed By Applying The

Traditional Rational

Basis Test.

Ordinarily, legislative classifications

will be upheld if they are rationally related

to a legitimate governmental purpose. Regan

v. Taxation With Representation, 461 U.S. 540,

547 (1983); Clements v. Fashing, 457 U.S. 957,

963 (1982). Classifications are subject to

strict scrutiny, and upheld if necessary to

promote a compelling governmental interest,

only when they burden a suspect class or

interfere with the exercise of a fundamental

constitutional right. Id.

Classifications which interfere with the

constitutionally protected right to freedom of

speech are subject to strict scrutiny. Regan

v. Taxation With Representation, 461 U.S. at

547. But as most courts have recognized, not

all speech is protected by the constitution.

It has long been settled that obscenity

is not protected by the first amendment.

Miller v. California, 413 U.S. at 23; Roth v.

United States, 354 U.S. at 485. Thus,

Classifications which do not discriminate

among different kinds of protected speech, cf.

Carey v. Brown, 447 U.S. 455 (1980), or

separate legitimate from illegitimate speech,

cf. Speiser v. Randall, 357 U.S. 513 (1958),

but merely treat one group of distributors of

unprotected obscene speech differently from

another group of distributors of unprotected

obscene speech, do not interfere with the

exercise of any protected right. E.g.,

Ripplinger v. Collins, 868 F.2d 1043, 1049-50

(9th Cir. 1989); United States v. Freeman, 808

F.2d 1290, 1293 (8th Cir.), cert. denied, 480

U.S. 922 (1987); Piepenburg v. Cutler, 649

F.2d 783, 787 (10th Cir. i961): Pollitt vy.

Connick, SSG F. Supp. 261, 267 (2.0. . Le.

1984); U.T., Inc. v. Brown, 457 F. Supp. 163,

166 (W.D.N.C. i978); 42000. Aether. Inc. . wy.

State, 290 Ark. 8, 716 S.W.2d 190, 192 (1986);

State v. Baker, 11 Kan. App. 2d 4, 711 P.2d

759, 762-63 (1985) (and cases collected); 400

East Baltimore Street, Inc. v. State, 49 Md.

App. 147, 431 A.2d 682, 694 (1981), cert.

denied, 455 U.S. 940 (1982); Commonwealth v.

Ferro, 372 Mass. 379, 361 N.E.2d 1234, 1236-37

(1977); Pack v. City of Cleveland, 1 Ohio St.

3d 129, 438 N.E.2d 434, 438 (1982); Long v.

130 Market Street Gift and Novelty, 294 Pa.

Super. 383, 440 A.2d 517, 523-24 (1982); State

. Lesieure, 121 R.I. 859, 404 A.2d 457, 463

bs)

State v. Hunt, 660 S.W.2d 513, 517

(Tenn. Crim. App. 1983), cert. denied, 466

U.S. 944 (1984).

The classifications attacked in this

litigation must be assessed, therefore, under

the traditional rational basis test. Id.

That test allows states considerable

leeway to enact legislation which may appear

to affect Similarly situated people

differently. Clements v. Fashing, 457 U.S. at

962-63; Parham v. Hughes, 441 U.S. 347, 351

(1979). Legislators are ordinarily presumed

to have acted constitutionally, and the

distinctions they deem desirable need only be

drawn in such a manner as to bear’ some

rational relationship to a legitimate state

interest. Clements v. Fashing, 457 U.S. at

963; Parham v. Hughes, 441 U.S. at 351.

"'If the classification has some

"reasonable basis," it does not

offend the Constitution simply

because the classification "is not

made with mathematical nicety or

because in practice it results in

some inequality." Lindsley v.

Natural Carbonic Gas Co., 220 U.S.

Ol, Fe tttPii)}i. "The problems of

government are practical ones and

may justify, if they do not require,

rough accommodations--illogical, it

may be, and unscientific."

Metropolis Theatre Co. v. City of

Chicago, 228 U.S. 61, 69-70

reagpeori. "A statutory

discrimination wili not be set aside

if any state of facts reasonably may

be conceived to justify | Phe

McGowan v. Maryland, 366 U.S. 420,

426 [(1961)].' Dandridge _ v.

Williams, an ee [471,] 485

64.0) Pe

Bowen v. Gilliard, 483 U.S. 587, 600-01

(1987). Accord Clements v. Fashing, 457 U.S.

at 963

B. The Exemption For Schools

And Libraries Is

Rationally Related To The

Legitimate State Interest

In rPeetecting

Institutions Of Learning

From Harassment By

Persons Seeking To Use

The Obscenity Law TO

Censor Works With

Serious Value.

The Wisconsin Legislature, knowing full

well the constitutional problems presented,

has chosen to exempt directors and employees

of schools and public libraries from liability

under the state obscenity statute.

§ 944.21(8).

The question presented by this choice is

not whether the legislature decided wisely to

make the obscenity statute less comprehensive

than it might have been, but whether its

considered decision to immunize’ certain

institutions from the same penalties as others

for commercially disseminating obscene

material was rational.

The fact that it took eight years after

the old obscenity statute was struck down in

State v. Princess Cinema, Inc., to enact a new

one demonstrates that the legislature did not

take its task lightly. It was as much

concerned about protecting the free flow of

ideas and preventing censorship of works

having serious literary, artistic, political,

scientific and educational value as it was

about combatting the obscenity industry. §

944.21(1). And it is no secret that in

Wisconsin, as elsewhere in the nation, there

is periodic pressure on schools and libraries

to purge their collections of unqualifiedly

serious works which some individuals or groups

consider morally or otherwise offensive.

An article in the Milwaukee Journal,

Sept. 26, 1988, at 4B, col. 1, Appendix at 9,

reported the results of a survey showing that

more than one hundred books were attacked in

Wisconsin schools and libraries during the

years since the Princess Cinema decision in

1980 left the state without an enforceable

obscenity law. During these years in which

the legislature was debating whether to enact

a new statute, challenges were made in almost

otis Wisconsin county, and included a

complaint about a volume of the World Book

Encyclopedia of Science. ic: B

A national survey of censorship efforts

against schools and libraries during the

1988-89 academic year, reported in the

Milwaukee Journal, Sept. 10, 1989, at 7J, col.

1, Appendix at 10, showed that Wisconsin was

among the many states in which books continued

to be challenged. Materials which were

subject to objection included not only the

perennial targets, Of Mice and Men,

Slaughterhouse Five and Catcher in the Rye,

but also such seemingly innocuous works as The

Wizard of Oz and the comic strip, Garfield.

Id. Nearly half the reported challenges

resulted in either removal of the material or

restrictions on its availability. Id.

Wisconsin lawmakers could reasonably

conclude they did not want an obscenity

statute to be used as a tool by pressure

groups to harass public institutions into

censoring plainly protected materials under

the threat of prosecution. They could

justifiably fear that, although ' such

litigation would not likely succeed, these

institutions might succumb to avoid the public

controversy, lingering hostility and

expenditure of scarce resources even an

unsuccessful prosecution would involve. See §

944.21(8)(a).

Since unwarranted pressure could be

brought to discontinue any commercial as well

as noncommercial dissemination of protected

material soi.2 groups found objectionable, the

lawmakers could reasonably decide to exempt

both the commercial and noncommercial

activities of vulnerable institutions to free

them from the exacerbated harassment which

could be provoked by the new enactment.

In addition, the legislature could

reasonably fear that would-be censors would

use the prospect of liability for commercial

dissemination of obscenity to harass schools

and libraries by arguing that their lending

activities were commercial because they

purchased their books and paid their

employees, or because they received tax

Support. Such arguments would not likely

prevail in litigation any more than _ an

argument that Catcher in the Rye is obscene.

The danger that the mere threat of litigation

for alleged commercial activity, regardless of

the reality of success, might lead _ to

suppression or restriction of protected

material with serious value justifies an

exemption for commercial activity.

The obscenity statute is aimed primarily

at commercial distribution of obscene >

material, moreover, § 944.21(1), (3), and the

legislature could determine that schools and

libraries deal so little in material which is

actually obscene, and engage in so little

commercial activity involving any kind of

material, that the impact of their exemption

on the efforts. to combat the obscenity

industry would be negligible.

The legislature could reasonably

conclude, consequently, that the danger to the

free flow of valuable ideas if schools and

libraries were included among those subject to

prosecution for distributing obscenity far

Outweighed the danger from any commercial

Gistribution of obscenity if they were

excluded. They could reasonably conclude that

an effective balance between the battle

against obscenity and the danger that

protected material could be aan innocent

casualty of that battle required that all

activities of schools and libraries’ be

insulated from efforts to misuse the obscenity

statute to harass these institutions, and

censor works with serious value.

This balance does not obtain, however,

for book and video stores.

Although these dealers also promote the

free flow of ideas in society, they do not

promote the flow for free. They, much more

than schools or libraries, are engaged in the

commercial dissemination of material. At

least some stores, moreover, those

euphemistically specializing in "adult"

material, are more likely to deal in material

which is legally obscene. These inherently

commercial enterprises, therefore, present a

significantly greater danger of commercial

dissemination of obscene material.

In addition, book and video dealers have

been much less’ prone to harassment’ and

censorship by citizens who seem to consider

tax supported institutions and employees

necessarily subservient to their personal

tastes. Not many have tried to pull John

Steinbeck's novels or Judy Garland's movies

from stores where they are for sale. These

private enterprises, therefore, face

Significantly less danger of being victimized

by the opposing problem the legislature sought

to avert.

Bookstores and video dealers are situated

differently from schools and public libraries.

And the legislature could properly treat them

differently by exempting the one class but not

the other from the obscenity statute.

The cases which have considered similar

justifications for exempting schools’~ and

libraries from the sanctions of obscenity

binseeeeeneteeieenemnemeeenntteastaasecnitacmaiiieiieaeisiiiameaeiiaiaieiiillns

statutes have upheld the classifications as

rationally related to the legitimate state

interest in protecting artistically and

educationally valuable material from public

censorship. 4000 Asher, Inc. v. State, 716

S.W.2d at 192-93; 400 East Baltimore Street,

Inc. Vv. State, 431 A.2d at 691-94;

Commonwealth v. Ferro, 361 N.E.2d at 1236-37;

State v. Martin, 719 S.W.2d 522, 525 (Tenn.

1986). None of these cases limits its

approval of the exemptions to the

noncommercial activities of schools and

libraries. See id.®

®The exemption approved in Commonwealth v.

Ferro expressly included a "'retail outlet

affiliated with and serving the educational

purpose of [the exempt] organization.'" Id.,

361 N.E.2d at 1236.

The cases which rely on other

justifications for approving school and

library exemptions do not by and large limit

their imprimaturs to the noncommercial

activities of these institutions, except in

those jurisdictions in which the obscenity

statutes in question limit their exemptions in

this way. E.g., Long v. 130 Market Street

(continued... )

None of the several authorities relied on

by the petitioners which have been unable to

find a rational basis for exempting schools

and libraries from other obscenity statutes,

Petition for Writ of Certiorari at 14, have

considered the justification expressed by the

Wisconsin Legislature for excluding schools

and libraries from this_- statute. These

authorities, therefore, are beside the point,

and offer no support for the claim that the

exemptions in § 944.21 are irrational as they

apply to commercial activities of public

institutions.

The exemptions, to the contrary, are

rationally related to the legitimate state

interest in protecting institutions having a

public purpose from harassment by persons

8( ...continued )

Gift and Novelty, 440 A.2d at 527-28. Other

cases approve exemptions for all activities of

institutions which by and large engage in

noncommercial activities. M.S. News Co. v.

Casado, 721 F.2d 1281, 1291-92 (10th Cir.

1983).

seeking to use the obscenity law to censor

nonobscene works with serious social value.

They do not deny equal « rotection,

consequently, to persons or institutions

denied their benefit.

Cc. The Exemption For

Contract Printing Is

Rationally Related To The

State's Legitimate

Interest In Protecting

The Free Flow Of Ideas

From All Socio-Economic

Strata Of Society.

There is a rational basis for exempting

contract printers from penal liability for

"the printing of material that is not subject

to the contract printer's editorial review or

control." § 944.21(5m).

The exemption for contract printing is

not based merely on the fact that printers who

occupy this segment of the trade _ lack

editorial review or control over the material

they reproduce, but on the fact that their

declination to exercise editorial control

allows them to print prepared materials

inexpensively, giving low and moderate income

persons and groups meaningful access to a

means of disseminating their protected speech.

As noted previously, the Wisconsin

Legislature was legitimately concerned with

battling the obscenity industry, but not at

all costs. § 944.21(1). It was equally

concerned with "protecting the free flow of

ideas," id., and "making available to all

citizens ... materials that reflect the

cultural diversity and pluralistic nature of

American society." § 944.21(8)(a).

The legislature could reasonably find, as

the Wisconsin Supreme Court did earlier, that

"contract printers . . . provide[] a quick and

inexpensive printing service that by its low

cost allows access to the print media by

groups that would otherwise not find such

access." Maynard v. Port Publications, Inc.,

vo 6s. 46 355, . 567,.. 297 NOW.26° 500, 507

(1980).

The reason for the low cost of the

printing, and hence its availability to low

and moderate income groups, is that contract

printers typically accept material which has

been written, edited, typeset and laid out by

others, and merely reproduce it on their

photo-offset printing machinery. Id. at 556-

57, 567-68, 297 N.W.2d at 502, 507. Contact

with the content of the material is negligible

because there is no need for a contract

printer to read or check the material in any

way before it is reproduced. Id. at 568, 297

N.W.2d at 507.

The legislature, like the court, could

have reasoned that:

If liability for failure to inspect

were imposed on printers like Port,

they would of necessity become

censors and their services would

become more expensive. Increased

costs might preclude the publication

of small, low-budget newspapers.

Such potential liability might also

deter contract printers from

contracting to print material they

consider to be controversial. All

of this would have a deleterious

effect on the free dissemination of

information which is fundamental in

our society.

Id. at 567, 297 N.W.2d at 507.

Consistent with this’ reasoning, the

statute is careful to specify that contract

printers have immunity only for the “printing"

of material which might be obscene. §

944.21(5m). Since "printing" includes only

the reproduction of material in printed form,

Ninth New Collegiate Dictionary at 935, this

exemption does not permit the reproduction of

films or of videotapes which are now becoming

the dominant mode of presenting pornographic

material. See generally 1 Attorney General's

Commission on Pornography, Final Report, §

4.2.2 at 287-89 (1986).

The kind of low cost, offset service

otfered by mostly local contract printers,

moreover, is not likely to be used by the

obscenity industry to mass’ produce their

glossy magazines. Contract printers,

consequently, could empirically be considered

to present a minimal threat of becoming a cog

in the obscenity industry.

The legislature could have reasonably

decided that its purpose to prevent the

printing of obscene material was outweighed in

this instance by its purpose to protect the

free flow of Eitkcial with serious value to

all segments of society. It could have

decided that it would be better to tolerate

the printing of perhaps a modicum of obscene

material, and thereby preserve the free flow

of ideas from those with marginal access to

the media, than to prohibit the printing of

all obscene material, and thereby effectively

censor the dissemination of serious literary,

artistic, political, scientific and

educational ideas by the less economically

advantaged of this state.

The legislature Could have concluded,

consequently, that it was necessary to

classify contract printers differently from

others lacking editorial review or control

over material, such as store clerks or movie

projectionists, who did not share their unique

role in making the first amendment right to

disseminate ideas a practical reality for

those who would otherwise be silenced by their

poverty.

The exemption for contract printing is

reasonably drawn to accommodate the important

state interest in preserving the free flow of

ideas from all its citizens without

Surrendering too much ground in itS_ war

against the obscenity industry.

D. Any Exemption From The

Obscenity Statute Found

To Be’ Unconstitutional

Could Be Severed, Leaving

A Fully Operative Valid

Law.

"[A] court should refrain from

invalidating more of the statute

than is necessary. ae

"{W]henever an act .. . contains

unobjectionable provisions separable

from those found to be

unconstitutional, it is the duty of

this court to so declare, and to

maintain the act in so far as it is

741536..°” The standard for

determining the severability of an

unconstitutional provision is well

established: "'Unless it is evident

that the Legislature would not have

enacted those provisions which are

within its power, independently of

that which is not, the invalid part

may be dropped if what is left is

fully operative as a law.'"

Alaska Airlines v. Brock, 480 U.S. 678, 684

(1987) (citations omitted).

The Wisconsin Legislature was given plain

notice that exemptions would be

constitutionally troublesome. It chose to

include three of them anyway. But by adding

that, "{t]he provisions of this section,

including the provisions of sub. (8), are

severable, as provided in s. 990.001(11)," §

944.21(10), the legislature evinced a clear

intent that the substantive provisions of the

statute should stand if any or all of the

exemptions should be found unconstitutional.

The exemptions for schools, public

libraries and contract printers are obviously

independent of the substantive provisions of

the law. Severing the exemptions, therefore,

would have no effect whatever on the nature of

the statutory prohibitions.

If any of these exemptions are found to

be unconstitutional, therefore, they should be

severed in accord with the expressed intent of

the legislature, leaving a fully operative law

which could be enforced to fulfill the primary

legislative purpose of fighting the obscenity

industry.

CONCLUSION

It is therefore respectfully submitted

that the petition for a writ of certiorari

should be denied.

DONALD J. HANAWAY

Attorney General

THOMAS J. BALISTRERI

Assistant Attorney General

Attorney of Record for

Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-1523

APPENDIX

Document Page of Appendix

Memorandum (3/2/88)

from Pam Russell to

Marlin D. Schneider 1-2

Memorandum (3/4/88)

from Jane Beyer to

Walter John Chilsen 3-6

Affidavit (6/20/89)

of Robert Welch 7-8

Article (9/26/88) from

Milwaukee Journal 9

Article (9/10/89) from

Milwaukee Journal 10

FE ee

WISCONSIN LEGISLATIVE COUNCIL STAFF MEMORANDUM -

Room 147 North, State Capitol, Madison 53702

Telephone (608) 266-1304

DATE: March 2, 1988

‘TO: REPRESENTATIVE MARLIN 0. SCHNEIDER

FROMM: Pam Russell, Staff Attorney

SUBJECT: Description of Senate Substitute Amendment __ (WLCS: 337/1) to

1987 Senate Bill 31, Relating to Obscenity

Senate -Substitute Amendment —— (LCS: 3537/1) to i937 Senate Bill 3!,

relating to obscenity, makes the following changes to Senace Biil 31:

1. Specifies that the transactions subject to criminal penaities are

only (a) enumerated transactions carried out for commerciai purposes and

(b) transactions involving minors.

2. Deletes advertising obscene materia) or an obscene performance as

‘a transaction that may be subject to criminal prosecution.

3. Provides a statement of legislative intent that the euthority to

prosecute obscenity is to 5e used primarily to combat the obscenity

industry and not to be used for harassment or censorship purposes and thet

enforcement should be consistent with constitutional free ‘speech

protections.

4. Makes the following changes in the definition of obscenity under

the Bill: ,;

a. Permits a court to consider whether the material or

performance has serious educational value.

e 4

b. Oeletes from the definition of sexual conduct the term

“simulation of" so that only depictions of actual commission of

the various types of sexual conduct would be covered under the

definition of obscene.

(OVER)

a2.

c. Specifies that "community standards" under the definition

of obscenity are statewide standards.

5. Requires that, prior to bringing a criminal action fora

violation of the state obscenity law, the Attorney General must determine

whether a criminal action shall be-commenced.

6. Authorizes counties to adopt ordinances to prohibit conduct that

is the same as the obscenity statute. The county is not required to

consult with the Attorney General prior to bringing an action for

violation of the ordinance.

7. Specifies that cities, villages and towns may not enact obscenity

‘ordinances:

8. With regard to the requirement. that a defendant must have

knowledge of the character and content of -the material “or: performance,

specifies that the general definition of “knowledge” applicable throughout

the Criminal Code (i.e., that knowledge only requires a belief that the

actor believes that the specified fact .exists) does not apply to the

obscenity statute.

9. Creates an exemption from prosecution under the obscenity statute

for employes, members of the board of directors or trustees of libraries

and educational institutions, if those persons are acting in th3ir

official capacities. 3

10.: Specifies that the provisions of the substitute amendment,

‘including the exemption for libraries and educational institutions, are

severable. ra

‘ -

PR:kja;las

March 4, 1988

70: ° Senator Walter John Chilsen

Room 40 South, State Capitol

FROM: Jane Beyer, Fiscal Analyst

Legislative Fiscal Bureau

SUBJECT: Senate Substitute Amendment WLCS 337/1 to Senate Bill 31

At. your request, I am providing a summary of Senate Substitute Amendment

WLCS 337/1 to Senate Bill 31, which would at A a number of modifications to

.the bill relating to obscene materials and performances.

Definition of Obscenity

Under Senate Bill 31, obscene material would be defined to mean a

writing, picture, sound recording or film which meets the following three

criteria:

1. The average person, if he or she would apply contemporary community

pig Ay would find the material appeals to prurient interests, if taken as

a whole;

2. ‘Under. community standards, the material describes or shows sexual

conduct in a patently offensive way; and

3. The material lacks serious literary, artistic, political or

scientific value, if taken as a whole. .

Obscene performance would be defined under $B 31 to mean a live

exhibition before an audience which meets the following three criteria:

1. The average person, if he or she would apply contemporary community

— would find the performance appeals to prurient interests, if taken

as a whole;

2. Under community standards, the performance describes or shows

sexual conduct in a patently offensive way; and

3. The performance lacks serious literary, artistic, political or

. scientific value, if taken as a whole.

Senator Walter John Chilsen

March 4, 1988

Page 2

The substitute amendment would specify that the “community standards"

under the definitions of obscene material and performances would be statewide

standards. The substitute amendment would further require that, in addition

to a a that the material or performance lacks serious literary,

artistic, " itical or scientific value, if taken as awhole, it lacks

educational value as well. "

Senate Bill 31 would define sexual conduct to mean the commission or

simulation of any of the following: sexual intercourse, sodomy, bestiality,

necrophilia, human excretion, masturbation, sadism, masochism, fellatio,

cunnilingus or lewd exhibition of human genitals. The substitute amendment

deletes from the definition of sexual conduct the term “simulation of" so

that only depictions of actual commission of the various types of sexual

conduct specified would be covered under the definition of obscene.

T of n ion hibited: Pen

Under the provisions of Senate Bill 31, it would be a Class D felony to

do any of the following with knowledge of the. character and content of the.

material or performance: (1) import, print, advertise, sell, possess for

sale, publish, exhibit or commercially transfer any obscene material; (2)

‘advertise, produce or perform in any obscene performance; (3) possess obscene

material with the intent to transfer or exhibit the material to a person

under the age of 18 years; or (4) transfer or exhibit any obscene material to

a person uncer the age of 18 years. Further, it also would be aClass 0

felony to require, as a condition to the —— of periodicals, that a

retailer accept obscene material. A Class 0 felony {is punishable by a fine

not to exceed $10,000 or imprisonment aot to exceed five years, or both.

The substitute amendment would délete advertising obscene materials or

performances as transactions that could be subject to prosecution. The

substitute amendment would limit the types of prohibited transactions

oe obscene materials and performances to include only the enumerated

transactions carried out for commercial purposes. The transactions oo

minors, which would be prohibited under the bill, would also be prohibite

under the provisions of the substitute amendment, regardless of whether they

would be carried out for commercial purposes. The substitute amendment would

provide that a violation of the obscenity statute is a Class 0 felony and

further, would specify that each day a violation of the obscenity provisions

continues would be a separate offense.

islative Inten

A statement of legislative intent is included in the substitute

amendment which provides that the authority to prosecute obscenity is to be

used primarily to combat the obscenity industry and is not to be used for

‘harassment or censorship purposes eee materials or performances having

serious artistic, literary, political, educational or scientific value. The

Senator Walter John Chilsen

March 4, 1988

Page 3

intent statement further provides that enforcement of the obscenity

provisions should be consistent with constitutional free speech protections.

Senate Bill 31 does not include a statement of legislative intent.

Knowledge Requirement

The provisions of Sena to persons who engage in

various actions invo obscene material or performances with knowledge of

the character a Ontent of the material or performance. Under a general

statutory prowfsion [s. 939.23(2)] relating to crimfnal intent, “know” is

defined to ywequire only that the actor believe hat the specified fact

exists. Thid statutory definition of knowled uld not apply to knowledge

of the character and content of the al or performance under the

m f r C)

The substitute amendment would create an exemption from prosecution

under the obscenity statute for employes, members of the board of directors

or trustees of libraries and educational institutions, if those persons are

poirdcn Bar their official capacities. Senate Bill 31 does not contain such an

exemption. ,

Prosecutor jal Authorization of the Attorney Genera)

The substitute amendment would also create the requirement that, before

any criminal obscenity law prosecution is commenced, the district attorney

must submit the. case for review by the Department of Justice. District

attorneys could only begin prosecution with the authorization of the Attorney

General. (It should be noted that the WLCS 337/1 draft appears to provide

the authority to determine whether gael cases should be prosecuted to

the Department of Justice generally, rather than the Attorney General

specifically. The Legislative Reference’ Bureau draft of the substitute

amendment to SB 31 clarifies this point to specify that it would be the

responsibility of the Attorney General specifically to authorize such

prosecutions.)

Local Regulation

The substitute amendment would allow counties to adopt ordinances to

prohibit conduct that is the same as that conduct which would be prohibited

under the state statute. Such ordinances could provide for a forfeiture not

to exceed $10,000 for each violation. The county would not be required to

consult with the Attorney General prior to beginning an action for violation

of the ordinance. Further, the substitute amendment would specify that

cities, villages and towns may not enact obscenity ordinances.

Senator Walter John Chilsen

March 4, 1988

Page 4

Severability of the Provisions

The substitute amendment specifies that the provisions of the substitute

amendment, including the exemption for libraries and educational

institutions, are severable.

Determinations Reoarding Obscenity

Senate Bill 31 would require that a judge or jury examine pictures or

passages in the context of the work in which they appear in determining: (a)

whether the average person, if he or she would apply contemporary community

standards, would find the material appeals to prurient interests if taken as

awhole, and (b) whether the material lacks serious literary, artistic,

political or ‘scientific value, if taken as awhole, and is therefore,

obscene. The substitute amendment would retain this provision.

. I hope this summary is useful. Please contact me if I can be of further

assistance.

JMB/ail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Case No. 88-C-657

WILLIAM H. KUCHAREK, et al.,

‘Plaintiffs,

Vv.

DONALD J. HANAWAY,

Defendant.

AFFIDAVIT OF STATE REPRESENTATIVE

ROBERT WELCH

STATE OF WISCONSIN )

. ) ss.

COUNTY OF DANE )

ROBERT WELCH, being duly sworn, states on oath that:

1. He is a Wisconsin state representative and member

of the Wisconsin Legislature.

2. He was a member of the conference committee which

wit together November 1987 Special Session Assembly Bill 10,

which ultimately was passed and signed by the governor: to become

1987 Wisconsin Act 416, creating the present Wisconsin obscenity

statute, Wis. Stat. § 944.21 (1987-88).

3 One of the compromises agreed to by the conference

committee was the elimination of simulations of sexual conduct

from the scope of the bill.

4. The intent of the committee was to limit the scope

-of the obscenity statute to material which describes or shows

the actual commission of sexual conduct.

ROBERT WELCH

State Representative

Subscribed and sworn to before me

this 20th , aseee

ae a

Notary Public, State of Wisconsin

My commission-ig permanent.

THE MILWAUKEE JOURNAL Monday, September 26, 1988

Efforts to ban books

rising, survey shows

: will be under more pressure,”

: said.

Stevens ‘Poist, Wis. whifun A

professor who has studied censorship

for more than 25 years says he sees

an increase this year in efforts to ban *

books from public libraries and .

schools.

Lee Burress, a University of Wis-

consin-Stevens Point English profes- ..

sor, said evidence from a fifth nation-

wide survey he is conducting

suggests that there is an increase in -

the state and nation.

In a survey two years ago, Dee:

ress identified more than 100 books

that have been challenged in Wiscon-

sin since 1980.

Books have been attacked by con-

cerned parents or adults in almost

every county in Wisconsin, Burress

sald, but the state is about average

‘when the number of- banning

attempts fs compared with national

* averages. , -

He said Wisconsin's new anti-ger-

nography law ‘could mean a rise in.

book-banning attempts. The law,

enacted in June, outlaws the sale or

exhibition of hard-core obscene

materials and provides for fines and

jail terms.

Although the law exempts schools

and libraries, Burress said he expect-

ed it would nonetheless encourage

more frequent challenges of books on

the shelves of patilc: ‘and school. .

libraries. * -

Burress, a member of the Wiscon-

sin Intellectual Freedom Coalition,

testified against enactment of the

law at public hearings earlier this”

year. -

“The net effect will probably be

chilling. I do think there will be more

problems because of the jaw. Schools, :

Burress said the most aienda

reason cited by parents and groups

who sought to ban books from

schools was obscenity. He said the

state's new law likely would be used

by those groups.

Kathleen Huston, chalrwoman of -

the Wisconsin Library Association's

intellectual freedom committee,. said

she too feared the obscenity law

_ would encourage more attempts to

ban books from: libraries.

“I think that it was a step back-

ward for the state,” she said.

Burress said recent examples

Illustrated a problem with book ban-

ning efforts, mainly that there is no

clear definition of obscenity. “The

general public uses that term in a

very loose, sloppy way,” he said.

The book “Working” by Studs

Terkel was challenged by parents in

- Wales who objected to language they

considered obscene.

In Evansville, a controversy

erupted last year over “Wcoman's

Body: An Owner’s Manual.” Parents

said the book contained “fiith” and

was “sick.”

Huston said the most recent com--

plaint she received was about 2 book

at an elementary school in Antigo.

The.book; “The Human Body,” was a

voiume of the World Book Encyclo-

* pedia of Science used by third- and

fourth-graders.

“There was concern,” Huston said,

“about a section of the book that

dealt with the reproductive system.

It had-the typical color overlays of

the male and female reproductive

- systems.

“The complaint was that the book

would get the children too confused

‘and frightened about something they

were too young to.understand,” she

sald.

Burress said, however, that he Is

encouraged by the fact that most

school boards in Wisconsin have

established guidelines for dealing

with complaints about books.

“It is a dangerous world out

there,” Burress said. “And I am sym-

pathetic with parents who want to

protect their kids. At the same time, I

don't think you can protect them by

preventing them from reading.”

Would-be censors challenge libraries

By JOHN BARBOUR

Assoc ied Press

Mére than 40 million public

od children and 13 million college

studepts have returned to their class-

room§ But in many of these halls of

Jearnbg, the shadow of censorship

over that source of light and

kaow hedge, the library.

Frpedom of speech and the press,

te and to read whatever you

like, Temaine protected in America.

But those freedoms are frequently

challgpged. Public and school librari-

ans o8en feel under siege.

Bopks as seemingly harmless as

Twain's “Huckleberry Finn”

Frank Baum's “The Wizard of

Oz” Nave been chalienged. Some of

the reost frequent targets are John

Steinjeck's “Of Mice and Men,” Kurt

Vonnpgut's “Slaughterhouse Five”

ané J.D. Salinger’s “Catcher in the

Rye.”! a

But, as the school board in Eliot,

Maine sald In rejecting a parental

Tequest to ban Judy Blume's novel

“Forever” as pornographic: “While

you have the right to censor material

for your child, we do not believe you

have Uhat right for other children In

the system.” -

One report issued last month said

religious extremists and right-wing

orgenizalions were gaining in their

battle to ban or censor library books.

The report was by People For the

American Way, ao anti-censorship

group founded by television producer

Norman Lear. The organization's 7th

annual report, “Attacks on the Free-

dom to Learn,” said censorship and

other ideological attacks on public

ecucaUon occurred in 42 of the 50

sistes, Including Wisconsin. . i

The report said school Ubraries

ware the target of significantly more

censorship attempts during the

1988-'89 school year, with more than

half the chalicnges made against

materials that are not required read-

ing but are availaDdle in the library.

Nearly half the challenges cov-

ered by the report resulted either jn

removal of the material or in restric-

tons on its use, such as @ require-

ment of prior parental consent.

In the 1986-'87 academic year,

People For the American Way

feported 153 attempts to remove

books from public schools or librar-

jes in 41 states, 37% of them success-

ful. .

Judith Krug, who writes and edits

the American Library Association's

Newsletter oo Intellectual Freedom,

chronicles those individuals and

_Broups “who attempt to remove

those materials from public availabil-

ity and accessibility.”

Is is &@ constitutional republic,

but the constitutional republic does

not work unless the electorate is

enlightened,” she said. “We are «

sation of self-governors, but in order

to make appropriate decisions we

peed te have information available

aod accessibie.”

Sooa, authors and celebrities will

visi. bookstores and libraries across

the country to read publicly excerpts

from banned books, as they did whea

Saiman Rushdie's “The Satanic Vers-

es” raised such a furor.

In Los Angeles, fcr instance, PEN

Center West, an author's group, will

meet In Malibu for readings of

banned books. Among the Invited are

Steve Allen, Alice Walker, Martin

Sheen, Ray Bradbury, Hope Lange,

Alvin Toffier, Larry King and Billy

Crystal.

In the year ended May 1989, the

American Library Association

reported that more than 100 books

were brought up on charges, includ-

ing Jim Davis’ “Garfield: His Nine

Lives.”

That cartoon book was challenged

in Saginaw, Mich., by a parent who

found some of the language and

drawings offensive. Said Stephen

James, assistant director for the Sag-

inaw County Public Library, “It was

lntended to be a children's book. But

some of the language was challeng-

ing.

A parent objected to one Iilustra-,

tlon Davis had captioned, “She

stormed, she fumed, she kicked ass.”

The drawing depicts a woman kick-

ing @ man and sending him tumbling.

The library review committee

decided to keep the book, but in the

adult section.

It has been a rough ume for James

and the Saginaw libraries. They

received 1] challenges from May to

December 1988.

The Saginaw authorities reported

to the library associauion: “Although

no evidence of an organized censor-

ship effort has been found as yet...

the sheer number of challenges

placed a clear burden on the Mbrary

and to many seemed to suggest fur-

ther trouble.” ‘

Saginaw received a complaint

because the Bible and books on

Christianity were shelved with books

on myths and other religions, but

that is where the Dewey Decimal

System places them.

What about a picture book for

children — named ere’a Waldo?”

— in which young readers scan

through a busy page of a hundred or

90 small illustrations of tiny charac-

ters to find Waldo? He is either ket

in the illustrations of people doing

things at a track meet or « depact-

ment store.

But among the illustrations, one

woman found a little boy peeking

under a curtain at a woman in a

department store dressing room. As

fo the other cases, the review com-

mittee refused to ban the book.

And Saginaw was asked to

remove a book called “Young, Gay

aod Proud,” an anthology of short

Stories, poems and essays supportive

of teenagers who have homosexual

tendencies.

The complaint was filed by David

A. Morel the father of two young

girls and a vice president of the

25-member Saginaw chapter of the

American Family Association, a reil-

fously oriented group based in

‘upelo, Miss., formeriy known as the

National Federation for Decency.

Morel, a church-going Baptist,

objected to the book oa pornographic

grounds,

The library reviewers rejected his

appeal. “We felt, in fact, 11 was not

enticing youngsters, that it was

intended to promote a sort of healthy

oelf-image and that io fact was a

good thing to do once a person had

made a personal decision,” James

said. “We decided to keep It in the

It is only one of some 400,000

books In the five Saginaw libraries.

But it is part of the diversity of books

that can be found In any public

brary. ;

“Many Voices, Many Books:

Strength Through Diversity” is the

theme of National Banned Books

Week, Sept. 23-30, red by the

Worary association. ere are a lot

of ideas out there I don't agree with,”

said Krug, the association's guardian.

“But I doa't think you can fight ideas

unless you know what they are. The

solution to a bad idea Je a good idea,

and ideas do bulld on one another.”

Libraries once practiced a concept

of balance, both sides of a controver-

sy. But those were simpler days,

when there were only (two sides.

Things are so complex, opinions so

varied, that librarians now embrace |

the concept of diversity.

At the base of many current cen-

sorship attempts is the Supreme

Court ruling that upheid the right of

a Missouri school board to censor a

student newspaper. The extension of

that ruling to school libraries |s being

tested In Florida.

Despite the constant battie to pre-

serve the sanctity of the sheives, the

passion for censorship continues

unabated.

In Loulsville, Colo., an elementary

school banned Halloween when par-

ents said it promoted devil worship

The ban was lifted when other par-

ents protested that it was depriving

their children of enjoyable activities.

But in North Pole, Alaska, named

after Santa's home base, @ school

banned the use of the word Christ-

mas in the holiday season on the

basis that it violated the separation of

church and state. The ban remains.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.