Dark Horse challenges Oregon censorship law
Dark Horse Comics and the Comic Book Legal Defense Fund are two of the plaintiffs suing the state and counties of Oregon to block a new law banning the sale or other distribution of certain material to children, and another applying even harsher penalties for “sexually arousing” material provided to teenagers. The law went into effect in January 2008.
The first law (ORS 167.054) prohibits (among other things) selling books containing any “sexually explicit” material to a child under the age of 13. The law defines this to include masturbation, sexual intercourse, and various combinations of objects and body parts that are commonly involved in having sex. This sounds reasonable, and is obviously well-intended. However, even though the term they use is “explicit”, the language of the law isn’t that precise. It refers to any “material containing visual images of: (a) Human masturbation or sexual intercourse,” which could easily include a picture of two people intertwined… but with no naughty bits visible.
The second law (ORS 167.057) applies to materials provided to anyone under the age of 17. It’s a little better in one sense, because it attempts to take into consideration what the purpose of providing the book was: it has to be with the intent of “(A) Arousing or satisfying the sexual desires of the person or the minor; or (B) Inducing the minor to engage in sexual conduct.” In case (B) the person is trying to commit statutory rape (Oregon’s age of consent is 18). But case (A) would mean that showing a dirty story to a 17-year-old to get him sexually aroused is illegal. So much for letting 17-year-olds into movies like American Pie or Porky’s.
Dark Horse is involved in this suit because they are based in Milwaukie, Oregon (a suburb of Portland) where they also operate a store. The CBLDF is involved on behalf of comics shops in Oregon, and cites Watchmen (stocked in all the good ones) as a book which would be restricted under this legislation. The other plaintiffs include several Oregon booksellers (including Powell’s, one of the largest used book stores in the country), the Cascade AIDS Project, Planned Parenthood, the Association of American Publishers, and the ACLU.
The law provides a few exemptions to protect schools, public libraries, medical professionals, and other such institutions, but it doesn’t protect booksellers in any way. This means that a book that’s perfectly legal for a 12-year-old to read in a lesson about human sexuality in school, would be Class A misdemeanor to let him browse in a bookstore. This could result in up to one year in jail and/or a fine of up to $6,250. Similarly, a book that is perfectly legal for a 17-year-old to pick up on his own read (and become aroused by), could be a Class C felony for someone to give to him. That could result in up to five years in prison and/or a fine of up to $125,000.
Furthermore, the law for under-13s doesn’t provide any exceptions for works in which the “sexually explicit” material is just a small portion of a larger work. The book in the case brought against Gordon Lee didn’t meet this “sexually explicit” standard (Picasso was nude but the images were not in any way sexual), but that’s an example of the kind of thing that could happen: a few images hidden in a larger book could make it illegal to furnish to a 12-year-old. Similarly, there’s no exemption for the overall “merit” of the work (like there is for determining “obscenity”); a book with a brief scene of sexuality used in a cautionary context for children would be judged the same a titty mag. Powell’s has millions of books on the shelves, and smaller stores generally have much smaller staffs, which could never hope to screen all of their books for this kind of material. It places an “undue burden” on them.
There’s also the problem that the one law sets the age of 13 as the limit. Most 13-year-olds (or 15-year-olds, and even some older teens) don’t carry any proof of their age. The law allows a person to use the defense that he “had reasonable cause to believe that the person” was more than 12 years old, but that’s up to the jury to determine or not. The only way a bookseller could be safe would be to require proof of age, which would effectively raise the age limit to 16. This is an example of what legal experts call a “chilling effect”, in which a vague law that could be applied carelessly effectively forces people to shy away from doing things that would (probably) be legal.
Both of these laws have noble goals: protecting minors from things they aren’t emotionally ready for. But they go farther than is really needed. Furnishing a 12-year-old with a book about human sexuality isn’t necessarily an attempt to abuse him or her, and furnishing a 17-year-old a book in which human sexuality is depicted as arousing, for the purpose of letting her or him enjoy it, isn’t necessarily an attempt at sexual molestation. It could simply be about providing harmless entertainment or education, and that shouldn’t be outlawed.