9th Cir. Rules Oregon Child Sexual Abuse Laws Violate 1st Amendment

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The U.S. Circuit Court of Appeals for the Ninth Circuit this week in Powell Books, Inc. d/b/a LLC v. Kroger (Nos. 09-35153, 09-35154) declared unconstitutional  two Oregon statutes intended to combat child sexual abuse as violating the First Amendment.


Oregon Rev. Stat. sec. 167.054 criminalized furnishing minors under age 13 with sexually explicit material, and Oregon Rev. Stat. sec. 167.057  imposed criminal penalties on those who lure minors under age 18 with visual, verbal or narrative descriptions of sexual conduct to arouse sexually the minor or the furnisher of the material or inducing the minor to engage in sexual activity.


Legislators claimed the laws were narrowly drafted to protect children from hardcore pornography. The validity of the statutes was challenged collectively by booksellers, nonprofit legal and health organizations, including the ACLU and Planned Parenthood of Columbia/Willamette, and a grandmother who argued the measures were over-broad and  criminalized otherwise protected speech.  The three-judge appellate panel agreed.

Writing the opinion joined by Senior Judge Ferdinand Fernandez and Judge Richard Paez, Judge M. Margaret McKeown said the statutes at issue, as drafted, "sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume."  The Court noted that materials that decidedly were not pornography, such as children's books Mommy Laid an Egg and Where Do Babies Come From? along with depictions of sex acts in  the best-seller The Joy of Sex, would be actionable under the Oregon statutes.