Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, October 15, 2010

Ninth Circuit Holds Oregon "Luring" and "Grooming" Statutes Overbroad

The Ninth Circuit has ruled that two Oregon statutes generally forbidding the exposure of sexually explicit material to children are overbroad and violate the First Amendment.

We consider here the constitutionality of a pair of Oregon statutes intended to stop child sexual abuse in its early stages. The statutes broadly take aim at practices of “luring” and “grooming” that expose minors to sexually explicit materials in the hopes of lowering their inhibitions against engaging in sexual conduct. The “furnishing” statute, Oregon Revised Statutes §167.054 (“section 054”), criminalizes providing children under the age of thirteen with sexually explicit material. The “luring” statute, §167.057 (“section 057”), criminalizes providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct.

Appellants, a broad cross-section of booksellers; non-profit literary, legal, and health organizations; and a concerned grandmother (together, “Powell's Books”), argue that these statutes violate the First Amendment. In particular, Powell's Books claims, among other things, that the statutes are facially overbroad and criminalize a substantial amount of constitutionally protected speech. We agree.

Although the state argues that the statutes may be construed to narrowly focus on the sharing of hardcore pornography or material that is obscene to minors alone, its position is contradicted by the statutory text. Repeated reliance on the legislature's efforts to combat hardcore pornography cannot change the text of the statute. The legislative goal does not match the text of the statutes; the statutes’ undoing is their overbreadth. In their current form, the statutes 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. Despite the legislature's laudable goals, we cannot rewrite the statute to conform to constitutional limitations.


We address Powell's Books’ overbreadth challenge alone as it suffices to dispose of this case. In examining an overbreadth challenge, we follow a familiar sequential analysis. First, we construe the reach of the statutory provisions....Second, we inquire whether the statute criminalizes a “substantial amount” of expressive activity. Id. at 297. Finally, we consider whether the statute is “readily susceptible” to a limiting construction that would render it constitutional. ...We review de novo the denial of declaratory relief....We review denial of a permanent injunction for an abuse of discretion, but review the underlying determination of the statutes’ constitutionality de novo and the underlying findings of fact for clear error. ...The statutes cannot survive this inquiry. Contrary to the state's position, 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 of constitutionally protected speech. In addition, the statutes are not subject to a limiting construction that would make them constitutional. For this reason, we conclude that Oregon Revised Statutes §§167.054 and 167.057 (except the “inducing” prong, which is not at issue here) are unconstitutionally overbroad and must be invalidated.
The case is Powell's Books v. Kroger, 38 Med.L.Rptr. 2313 (U.S.C.A., 9th Circ., 
09-35153, –35154, September 20, 2010).
See also here for a summary and here for audio for the oral arguments.

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