Kucharek v. Hanaway

902 F.2d 513, 1990 WL 58128
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 7, 1990
DocketNo. 89-2885
StatusPublished
Cited by46 cases

This text of 902 F.2d 513 (Kucharek v. Hanaway) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kucharek v. Hanaway, 902 F.2d 513, 1990 WL 58128 (7th Cir. 1990).

Opinion

POSNER, Circuit Judge.

The Attorney General of Wisconsin appeals from an order declaring — at the behest of several purveyors of sexually explicit books, magazines, and videotapes— Wisconsin’s obscenity statute unconstitutional, and enjoining its enforcement. 714 F.Supp. 1499 (E.D.Wis.1989). The statute, Wis.Stat. § 944.21, was enacted in 1988, after eight years in which Wisconsin had no obscenity statute, the predecessor to section 944.21 having been held to violate the First Amendment in State v. Princess Cinema, Inc., 96 Wis.2d 646, 292 N.W.2d 807 (1980). Passage of a successor statute was stubbornly resisted by booksellers and publishers but eventually the differences between proponents and opponents were compromised by the enactment of a statute considerably less severe than authorized by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As the plaintiffs concede, Wisconsin could cure the infirmities that the district judge found in the statute by replacing it with one that went to the limits permitted by Miller, and such a statute would fence the plaintiffs in more tightly than the present one does. But the plaintiffs hope that if the Wisconsin legislature were faced with a choice between a stricter statute and no statute, it would choose no statute, in which event the plaintiffs would be under no state-law constraints at all and would therefore be even better off than they are under the present statute. This explains the paradox of pornographers’ arguing that an anti-pornography statute is unconstitutional because too lenient, but it does not explain why the argument persuaded the district judge.

The statute defines obscene material as “a writing, picture, sound recording or film” which appeals to the prurient interest, describes or shows sexual conduct in a patently offensive way, and lacks any redeeming social value. Anyone who sells such material “with knowledge of [its] character and content” is guilty of a crime, but there are exemptions for contract printers and also for officers and employees of public, and accredited private, schools and public libraries. The district judge concluded, in a thoughtful opinion, that the statute is unconstitutionally vague, and therefore denies due process, insofar as it fails to indicate clearly whether simulations of sexual conduct as distinct from depictions or descriptions of actual sexual conduct are [516]*516comprehended within the definition of “obscene,” but not insofar as it fails to specify whether videotapes are included within the definition of “material.” The judge thought it plain that videotapes are included—the statute would be senseless otherwise—although the plaintiffs renew in our court their argument that the statute is hopelessly vague in this respect also. The judge further held that the statute denies the plaintiffs equal protection of the laws by arbitrarily exempting schools, libraries, and contract printers. He invalidated the statute in its entirety because he did not think that its vagueness could be cured by interpretation, but he added that the statute’s severability clause would have allowed him to lop off the exemptions without invalidating the rest of the statute if they alone had been unconstitutional.

Although there have been as yet no prosecutions—of the plaintiffs or of anyone else—for violation of Wisconsin’s new obscenity statute, it is early days, and the plaintiffs have made an adequate showing that they want to sell materials which the statute actually or arguably prohibits and that they are deterred from doing so by a reasonable fear of prosecution. So there is a real controversy between them and the state, and the suit can be maintained in a federal court without violating Article III of the Constitution. Bowers v. Hardwick, 478 U.S. 186, 188, 106 S.Ct. 2841, 2842, 92 L.Ed.2d 140 (1986); American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985), aff’d without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); Alleghany Corp. v. Haase, 896 F.2d 1046, 1049 (7th Cir.1990). The existence of an actual controversy is much clearer than in Bowers. Obscenity laws are enforced, though erratically and ineffectively; sodomy laws are not enforced. The plaintiff in Bowers had been arrested for committing sodomy, but he had not been prosecuted; nor had anyone else during the preceding forty years. Yet the plaintiff was held to have standing to sue to enjoin the enforcement of the state’s sodomy statute.

The plaintiffs have not attempted to show that the libraries, schools, or contract printers exempted by the statute are actual or potential competitors of theirs in the sale of pornographic materials and hence that the plaintiffs are being forced to compete with entities upon which the statute has conferred a privileged status. The lack of such a showing may appear to cast another shadow over the plaintiffs’ standing to challenge the exemptions, but the appearance is deceptive. A person is allowed to point to the existence of an exemption in order to demonstrate the irrationality of a prohibition to which he is subject, even if the exemption itself does not harm him by conferring an advantage on a rival. That is a common way of making an equal protection challenge. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987); Orr v. Orr, 440 U.S. 268, 272-73, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979). It does no violence to the concept of standing. It is true that the harm to the plaintiffs that is essential to their right under Article III to maintain this suit comes not from the exemptions but from the threat of prosecution of the plaintiffs, who are not exempt. But because there is a harm to them that emanates from the statute, they have standing to maintain this suit without running afoul of Article Ill’s limitation of the jurisdiction of the federal courts to actual cases. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1525-26 (7th Cir.1990). The question whether the exemptions are so unreasonable as to deny the plaintiffs equal protection of the laws is a question about the merits of the constitutional challenge rather than about their right to mount such a challenge.

The state argues that the district judge should not have reached the merits— that he should have abstained under the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), to enable the Wisconsin courts to give the statute an interpretation [517]*517that might eliminate constitutional doubts.

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Bluebook (online)
902 F.2d 513, 1990 WL 58128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kucharek-v-hanaway-ca7-1990.