State booksellers, ACLU challenge Oregon's sexual material law
PORTLAND — The American Civil Liberties Union of Oregon has joined booksellers to challenge a state law restricting the sale or provision of sexually explicit material to children, saying it could affect constitutionally protected material.
The ACLU says the law approved by the 2007 Legislature is vague and could result in parents being charged for providing educational books to their children — or even an older child who gives material to a younger sibling.
As an example, the ACLU cited the 1975 novel "Forever" by Judy Blume, a frequent target of censors because it deals with teenage sexuality.
"A 17-year-old girl who lends her 13-year-old sister a copy of the book and tells her to 'read the good parts' could be arrested and prosecuted," said Dave Fidanque, ACLU executive director for Oregon.
But one of the chief sponsors of the bill, state Rep. Andy Olson, R-Albany, said he and his co-sponsor, Democratic state Sen. Kate Brown, spent nearly a year and a half on the bill making sure it was aimed only at sexual predators.
"The bottom line is that this bill was written to protect kids and prevent harm from coming to children, nothing more," Olson said Monday.
A spokeswoman for Oregon Attorney General Hardy Myers, who supported the law, says constitutional issues were discussed when it was being drafted and sent through committee.
"And it passed muster," said spokeswoman Stephanie Soden. "We're prepared to defend the law and we're pretty confident in our position."
The goal of the law is to protect children from sexual predators who provide explicit materials to "groom" their victims.
Olson said the new law makes it a crime to provide sexually explicit material and pornography to children under age 13, revising outdated laws that included potentially unconstitutional provisions.
He added the law is detailed enough to ensure that sex education material meant for children is protected so that parents, health care providers and libraries are not at risk, as the ACLU claims.
"I don't think grandma wants to give the kids books like this," Olson said, referring to the revised statutory language listing the kinds of material considered pornographic or explicit.
The chairman of the House Judiciary Committee, state Rep. Greg Macpherson, D-Lake Oswego, said the bill was amended to address ACLU concerns "and we thought we had solved the problems but apparently we didn't."
Macpherson, who is running for attorney general, noted there was no issue with a companion bill to make it a crime to solicit sex from teens over the Internet in order to deal with the same problem.
But the law making it a crime to furnish sexually explicit material is too broad and "potentially criminalizes many constitutionally protected providers of sex education materials," the ACLU said.
It could result in many cases where "there is no way to tell the difference between constitutionally protected material and criminal material without taking the issue to a jury," Fidanque said.
Booksellers, librarians, community organizations and health care providers are at risk under the law and could face jail time and fines up to $125,000, according to the ACLU.
To add to the confusion, Fidanque said the law has two parts — one to prevent the sale of sexually explicit material to a child, defined as anybody under age 13, and a second part aimed at anybody who provides such material to a minor, which includes teenagers.
The sale requirement places a burden on booksellers to ensure customers are old enough, said Michael Powell, owner of Powell's Books in Portland.
"It says a 13-year-old can legally buy these books, but it's a crime to sell them to a 12-year-old," Powell said. "How do I 'card' a 12-year-old?"
The book store joined the ACLU, Planned Parenthood of the Columbia/Willamette, the Cascade AIDS Project, Dark Horse Comics, the Association of American Publishers and others to file the lawsuit last Friday in U.S. District Court in Portland. It names Myers and the state's district attorneys as defendants.
