Introduced by Rep. Andy Olson (R-Albany), HJR 34 was a constitutional amendment to add language to Article I, section 8, allowing the legislature to enact laws regulating the furnishing of sexually explicit material to minors “consistent with the U.S. Constitution.”
It was a direct response to our successful challenge to portions of legislation passed in 2007 that had the effect of putting booksellers, including Powell’s Books, health organizations, including Cascade Aids Project and Planned Parenthood, family members, including grandparents, and many others at risk of being charged with a crime if they provided material to minors that contained “sexually explicit” content. In Powell’s Books v. Kroger, the 9th Circuit Court of Appeals agreed with our position that the 2007 laws were overbroad and prohibited a significant amount of legal and age appropriate material, including the children’s books Mommy Laid an Egg and Where Do Babies Come From by Babette Cole as well as pre-teen and teenage books, such as Forever by Judy Blume.
The 9th Circuit held that the 2007 Oregon laws were unconstitutional under the First Amendment, not Article I, section 8. Therefore, our constitution was not relevant to the constitutional flaws of the 2007 laws. Importantly, we did not challenge the portions of the 2007 laws that make it a crime for a predator to give sexually explicit material to a minor for the purpose of luring the minor to engage in sexual acts. In 2007 we agreed that there was a gap in the law and if a perpetrator is caught before committing sexual assault but was using sexually explicit material intentionally as a way of grooming the minor he or she should be charged with a felony. Because that gap was filled in 2007, we testified, among other things, that HJR 34 was not necessary. Indeed, when the chief sponsor of HJR 34, Rep. Andy Olson (who was also the co-author of the 2007 law along with now Secretary of State Kate Brown), testified, he was asked what kind of law he would propose if HJR 34 were passed by the voters. He was unable to identify any gap and could not provide any concept or actual proposal.
HJR 34 was first heard in the House Judiciary Committee. Joining us in testifying against was Candace Morgan, our grandmother plaintiff in Powell’s Books, our cooperating attorney for that case, P.K. Runkles-Pearson (of Stoel Rives) and the Oregon Library Association. HJR 34 was moved out of the House Judiciary Committee to the House Rules Committee, where it was given another public hearing and we once again testified against it. Because the House Rules Committee (like its counterpart on the Senate side) remained open until the very end of session and was co-chaired by Rep. Olson, we remained concerned that HJR 34 could have moved out of that committee at any time with merely an hour’s notice. We worked hard to prevent that and were pleased when it died in that Committee upon sine die.
WIN: DIED IN COMMITTTEE