Legal Research

9th Circuit says Oregon laws aimed at protecting children from pornography ? too broad

By scott

A three-judge panel of the US 9th Circuit Court of Appeals has ruled that a pair of Oregon statutes that ban certain people from providing minors with sexually explicit information are unconstitutionally broad.

The laws criminalising the furnishing ?sexually explicit material? to children and also criminalises furnishing a minor or ?us- [ing]? a ?visual representation or explicit verbal description or narrative account of sexual conduct? with a minor. ?Sexual conduct? is defined as the same acts depicted in ?sexually explicit material,? except it adds the ?[t]ouching of the genitals, pubic areas or buttocks of the human male or female or of the breasts of the human female.?

They were introduced by the State to protect children from hard-core pornography. The State argued and the District Court had agreed that the statutes are narrowly written and tailored. The 9th Circuit judges disagreed.

It found the statutes “reach the distribution of far more material than hardcore pornography or material that is obscene to minors, and they implicate a substantial amount constitutionally protected speech. In addition, the statutes are not subject to a limiting construction that would make them constitutional.”

The court stated and stated that even ignoring the fact that neither statute mentions hardcore pornography “whatever the precise boundaries of hardcore pornography may be, the statutes clearly extend beyond them.” This was obvious from the evidence that drawings of sex acts in The Joy of Sex; and the cartoon depictions of sexual intercourse in the children?s book, Mommy Laid an Egg, or Where Do Babies Come From? by Babette Cole* are visual depictions of ?sexual intercourse? under the laws, and yet they would hardly count as hardcore pornography.

The State had tried to point to the exemptions from liability that appears in both provisions?that is, the exemption for materials whose sexual content ?form[s] merely an incidental part of an otherwise nonoffending whole and serves some purpose other than titillation.?

This, it argued, gave those selling The Joy of Sex etc nothing to worry about. However, the court was having none of it, pointing out that exemptions were actually an exemption, due to the use of ‘and’ and not ‘or’ before “serves some purpose other than titillation”, meant that to avail themselves of this exemption a defendant would have to satisfy both conditions .

This meant that a work might still give rise to liability “if its sexually explicit portions solely intend to titillate but are only an incidental part of the work as a whole”, or that “a work might give rise to liability if its sexually explicit portions are more than an incidental part of the work, but do not solely intend to titillate (e.g., Margaret Atwood’s - The Handmaid?s Tale).

Whilst the court had sympathy with the State’s aims, but said regardless of any contrary suggestions in the legislative history that they would take action against people selling Mommy Laid an Egg, or Where Do Babies Come From? Or The Handmaid’s tale, for example, the statutory text is plainly not limited to offending pornographic materials. “[G]ood intentions cannot trump the language of the statute… We may not uphold the statutes merely because the state promises to treat them as properly limited.”

* I once worked in a public library where the ‘powers that be’ in our head office agreed to removed this book from the open stacks/picturebook box after a complaint by a parent who was disgusted that this kind of ‘porn’ was being targetted at young innocent children. Funny how many parents who have personal hang ups about discusing sex with their children ‘protect’ their children this way.

Full post as published by Information Overload on September 24, 2010 (boomark / email).