Shipley, Inc. v. Long

195 S.W.3d 911, 359 Ark. 208
Supreme Court of Arkansas·Decided October 21, 2004·No. 04-136·Published·Cited by 14 cases

Opinions

Tom Glaze, Justice.

This case is before us on certification from the United States District Court for the Eastern District of Arkansas, pursuant to Ark. Sup. Ct. R. 6-8 (2004). The federal court has certified four questions to us, asking us to provide an interpretation of Act 858 of 2003, as codified at Ark. Code Ann. § 5-68-501 et seq. (Supp. 2003). See Shipley, Inc. v. Long, 356 Ark. 220, 148 S.W.3d 746 (2004).

In 1969, the General Assembly enacted Act 133, which made it unlawful for any person to knowingly sell to a minor certain materials considered “harmful to minors.” See Ark. Code Ann. § 5-68-502(a) (Repl. 1997). The definition of “harmful to minors” at that time comported with the United States Supreme Court’s decision in Ginsberg v. New York, 390 U.S. 629 (1968). In 1993, the General Assembly passed-Act 1263, which amended Act 133 of 1969 by changing the definition of “harmful to minors” to reflect the definition of obscenity the Supreme Court adopted in Miller v. California, 413 U.S. 15 (1973). The new definition—which is still in use in the current version of the statute — provides as follows:

“Harmful to minors” means that quality of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when the material or performance, taken as a whole, has the following characteristics:
(A) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors;
(B) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and
(C) The material or performance lacks serious literary, scientific, medical, artistic, or political value for minors[.]

§ 5-68-501 (2)(A) (Supp. 1999 & 2003) (emphasis added).

The 1999 version of the statute prohibited the “display [of] material which is harmful to minors in such a way that minors, as a part of the invited general public, will be exposed to view such material.” § 5-68-502(1)(A) (Repl. 1999). However, the statute also contained a “safe harbor” provision that provided a person “shall be deemed not to have displayed material harmful to minors if the material is kept behind devices commonly known as ‘blinder racks’ so that the lower two-thirds (2/3) of the material is not exposed to view[.]” § 5-68-502(l)(B) (Supp. 1999).

In 2003, the General Assembly amended §§ 5-68-501 — 502 even further by enacting Act 858, which requires material deemed “harmful to minors” to be obstructed from view and physically segregated. In relevant part, the 2003 version of the statute provides as follows:

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 a 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.

On June 10, 2003, a group ofbookstore owners, booksellers’ associations, librarians, publishers1 (collectively hereinafter “the booksellers”) filed a complaint in the United States District Court, Eastern District of Arkansas. The named defendants were each of the State’s prosecuting attorneys (“the State”). The complaint sought to enjoin the enforcement of, and to declare facially unconstitutional and void, the newly amended portions of§ 5-68-502. Among other things, the booksellers alleged that the “offending sections” would impose severe restrictions on the availability, display, and distribution of material that was not obscene as to adults; in particular, they contended that it would not be possible under § 5-68-502, as amended, to restrict the display of materials deemed “harmful to minors” without also restricting access by adults.

After the State answered, generally denying the allegations of the complaint, both the booksellers and the State filed cross-motions for summary judgment. After a hearing on the motions, the federal district court issued a “Certification Order,” dated February 4, 2004. In the order, the federal court expressed a number of concerns about the constitutional issues raised by a variable obscenity statute, such as Arkansas’, in the context of access and display regulation.2 In particular, the district court questioned whether a narrowing interpretation might be able to save the statute, or whether such an interpretation would “distort the obvious objectives of the statute.” As such, the federal district court certified four questions to this court. Those questions are as follows:

I. Is the statute (§ 5-68-501, etseq.) 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?
II. 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?
III. 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 materials before he or she breaches the “allow to view” provision?

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Shipley, Inc. v. Long, 195 S.W.3d 911, 359 Ark. 208 (Ark. 2004).

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Shipley, Inc. v. Long
195 S.W.3d 911 (Supreme Court of Arkansas, 2004)