When state legislatures pass stupid, reactionary laws:
The Arkansas Supreme Court is finding it difficult to offer advice to a federal judge about how to interpret a state explicit materials law.
Justices have been asked to help U.S. District Judge G. Thomas Eisele figure out what the 2003 law intended to do.
It was supposed to regulate the display of sexually explicit materials harmful to minors, but it was never enforced because its constitutionality was immediately challenged by booksellers' groups and the ACLU.
Eisele expressed confusion at whether the law covered older and younger minors differently, how booksellers were supposed to segregate materials and whether it dealt with the visible covers of magazines and books or all content.
Oral argument was today, and apparently the Justices seemed confused.
Details here from KATV Channel 7.
The Petitioner's Brief in the Arkansas Supreme Court is here (filed by Michael A. Bamberger of SONNENSCHEIN NATH & ROSENTHAL LLP of New York).
The statute in question is Ark. Code Ann. � 5-68-502 (Supp. 2003), the "offending sections" of which read:
AN ACT TO REQUIRE MATERIAL HARMFUL TO MINORS TO BE OBSTRUCTED FROM VIEW AND SEGREGATED IN COMMERCIAL ESTABLISHMENTS AND FOR OTHER PURPOSES: AN ACT TO REQUIRE MATERIAL HARMFUL TO MINORS TO BE
OBSTRUCTED FROM VIEW AND SEGREGATED IN COMMERCIAL ESTABLISHMENTS.It shall be unlawful for any person, including, but not limited to, any persons having custody, control, or supervision of any commercial establishment, to knowingly:
(1)(A) Display material which is harmful to minors in such a way that minors, as part of the invited general public, will be exposed to view such material.
(B) Provided, however, a person shall be deemed not to have displayed material harmful to minors if the lower two-thirds (2/3) of the material is not exposed to view and segregated in a manner that physically prohibits access to the material by minors; or
(2)(A) Sell, furnish, present, distribute, allow to view, or otherwise disseminate to a minor, with or without consideration, any material which is harmful to minors.
(B) Provided, this prohibition shall not apply to:
(i) Any dissemination by a parent, guardian, or relative within third degree of consanguinity of the minor; or
(ii) Any dissemination with the consent of a parent or guardian of the minor;
The federal judge posed these questions:
POINTS ON APPEAL
QUESTION 1
Is the statute (� 5-68-501, et seq.) intended to protect all minors, i.e., all persons seventeen years of age and younger, from exposure to �materials harmful to minors?� If the answer is �yes,� may the statute nevertheless be interpreted under Arkansas law to protect only those who are the older, more mature minors from exposure to such materials, if that interpretation is the only way to protect the statute from a successful attack under the United States Constitution?QUESTION 2
The statute (� 5-68-502) makes it unlawful to �display material which is harmful to minors in such a way that minors, as part of the invited general public,will be exposed to view such material.� Are books and magazines that have contents containing materials harmful to minors but which have no such materials on their binders or covers being �displayed� under the statute if they are simply shelved in bookcases or on book shelves without any additional action or effort to single them out or to draw the attention of the �invited general public� thereto?QUESTION 3
Does a bookseller or librarian �allow to view � to a minor � any material which is harmful to minors,� � 5-68-502(2)(A), by simply shelving and displaying such material, or must he or she affirmatively give permission (i.e. �allow�) the minor to view such material before he or she breaches the �allow to view� provision?QUESTION 4
The �Safe Harbor� provision contained in � 5-68-502(1)(B) requires that the material be �segregated in a manner that physically prohibits access to the material by minors.� What must booksellers and librarians do to avail themselves of this provision?
You tell me.