September 20, 2010 - This morning, the United States Court of Appeals for the Ninth Circuit held that two Oregon statutes that criminalize distributing sex education and other non-obscene materials to minors are unconstitutional in violation of the First Amendment. The State of Oregon argued that the statutes applied only to “hardcore pornography,” but the Ninth Circuit found that they applied to much more, including “The Joy of Sex,” “Mommy Laid an Egg: or Where Do Babies Come From,” Robie Harris’ “It’s Perfectly Normal,” Kentaro Miura’s manga “Berserk,” Judy Blume’s “Forever,” and Margaret Atwood’s “A Handmaid’s Tale.” The plaintiffs did not challenge Oregon’s existing law making it a crime to contact a minor with the intent of having sexual contact.
“This is an important victory permitting readers − both younger and older − to obtain what they are constitutionally entitled to read,” said Michael Powell of plaintiff Powell’s Books. “It is also a victory for booksellers who do not want to ask 13-year-olds for identification or risk going to jail for selling a Judy Blume book.”
“The court did the right thing by rejecting the State’s promise that it wouldn’t prosecute the plaintiffs under these statutes,” said P.K. Runkles-Pearson, counsel for plaintiffs. “This decision allows educators to provide straightforward health information to minors without worrying that the State will prosecute if it disagrees with them.”
The decision was issued in a lawsuit brought by Powell’s Books, Inc.; Annie Bloom’s Books; Dark Horse Comics, Inc.; Colette’s Good Food + Hungry Minds, LLC; Paulina Springs Books; St. John’s Booksellers, LLC; American Booksellers Foundation for Free Expression; Association of American Publishers, Inc.; Freedom to Read Foundation, Inc.; Comic Book Legal Defense Fund, Candace Morgan, Planned Parenthood of the Columbia/Willamette, Inc.; Cascade AIDS Project and the ACLU of Oregon.
Plaintiffs were represented by P.K. Runkles-Pearson of Stoel Rives LLP, Portland, Oregon, a cooperating attorney for the ACLU of Oregon and Michael A. Bamberger of Sonnenschein Nath & Rosenthal LLP, New York, general counsel to Media Coalition.
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