POWELL'S BOOKS, INC. v. KROGER

Nos. 09-35153, 09-35154.

622 F.3d 1202 (2010)

POWELL'S BOOKS, INC.; Old Multnomah Book Store, Ltd., DBA Annie Bloom's Books; Dark Horse Comics, Inc.; Colette's: Good Food + Hungry Minds, LLC; Bluejay, Inc., DBA Paulina Springs Books; St. John's Booksellers, LLC; American Booksellers Foundation for Free Expression; Association of American Publishers, Inc.; Freedom To Read Foundation, Inc.; Comic Book Legal Defense Fund, Plaintiffs-Appellants, and American Civil Liberties Union of Oregon; Candace Morgan; Planned Parenthood of the Columbia/Willamette, Inc.; Cascade Aids Project, Plaintiffs, v. John R. KROGER, in his official capacity as Attorney General of the State of Oregon; Matt Shirtcliff, Baker County District Attorney, in his official capacity; John Haroldson, Benton County District Attorney, in his official capacity; John Foote, Clackamas County District Attorney, in his official capacity; Joshua Marquis, Clatsop County District Attorney, in his official capacity; Steve Atchison, Columbia County District Attorney, in his official capacity; Paul Frasier, Coos County District Attorney, in his official capacity; Gary Williams, Crook County District Attorney, in his official capacity; Everett Dial, Curry County District Attorney, in his official capacity; Michael Dugan, Deschutes County District Attorney, in his official capacity; Jack Banta, Douglas County District Attorney, in his official capacity; Marion Weatherford, Gilliam County District Attorney, in his official capacity; Ryan Joslin, Grant County District Attorney, in his official capacity; Tim Colahan, Harney County District Attorney, in his official capacity; John Sewell, Hood River County District Attorney, in his official capacity; Mark Huddleston, Jackson County District Attorney, in his official capacity; Peter L. Deuel, Jefferson County District Attorney, in his official capacity; Stephen D. Campbell, Josephine County District Attorney, in his official capacity; Edwin I. Caleb, Klamath County District Attorney, in his official capacity; David A. Schutt, Lake County District Attorney, in his official capacity; Douglass Harcleroad, Lane County District Attorney, in his official capacity; Bernice Barnett, Lincoln County District Attorney, in her official capacity; Jason Carlile, Linn County District Attorney, in his official capacity; Dan Norris, Malheur County District Attorney, in his official capacity; Walter M. Beglau, Marion County District Attorney, in his official capacity; Elizabeth Ballard, Morrow County District Attorney, in her official capacity; Michael D. Schrunk, Multnomah County District Attorney, in his official capacity; John Fisher, Polk County District Attorney, in his official capacity; Wade M. McLeod, Sherman County District Attorney, in his official capacity; William Bryan Porter, Tillamook County District Attorney, in his official capacity; Dean Gushwa, Umatilla County District Attorney, in his official capacity; Tim Thompson, Union County District Attorney, in his official capacity; Daniel Ousley, Wallowa County District Attorney, in his official capacity; Eric J. Nisley, Wasco County District Attorney, in his official capacity; Robert Hermann, Washington County District Attorney, in his official capacity; Thomas W. Cutsforth, Wheeler County District Attorney, in his official capacity; Brad Berry, Yamhill County District Attorney, in his official capacity, Defendants-Appellees. American Civil Liberties Union of Oregon; Candace Morgan; Planned Parenthood of the Columbia/Willamette, Inc.; Cascade Aids Project, Plaintiffs-Appellants, and Powell's Books, Inc.; Old Multnomah Book Store, Ltd., DBA Annie Bloom's Books; Dark Horse Comics, Inc.; Colette's: Good Food + Hungry Minds, LLC; Bluejay, Inc., DBA Paulina Springs Books; St. John's Booksellers, LLC; American Booksellers Foundation for Free Expression; Association of American Publishers, Inc.; Freedom to Read Foundation, Inc.; Comic Book Legal Defense Fund, Plaintiffs, v. John R. Kroger, in his official capacity as Attorney General of the State of Oregon; Matt Shirtcliff, Baker County District Attorney, in his official capacity; John Haroldson, Benton County District Attorney, in his official capacity; John Foote, Clackamas County District Attorney, in his official capacity; Joshua Marquis, Clatsop County District Attorney, in his official capacity; Steve Atchison, Columbia County District Attorney, in his official capacity; Paul Frasier, Coos County District Attorney, in his official capacity; Gary Williams, Crook County District Attorney, in his official capacity; Everett Dial, Curry County District Attorney, in his official capacity; Michael Dugan, Deschutes County District Attorney, in his official capacity; Jack Banta, Douglas County District Attorney, in his official capacity; Marion Weatherford, Gilliam County District Attorney, in his official capacity; Ryan Joslin, Grant County District Attorney, in his official capacity; Tim Colahan, Harney County District Attorney, in his official capacity; John Sewell, Hood River County District Attorney, in his official capacity; Mark Huddleston, Jackson County District Attorney, in his official capacity; Peter L. Deuel, Jefferson County District Attorney, in his official capacity; Stephen D. Campbell, Josephine County District Attorney, in his official capacity; Edwin I. Caleb, Klamath County District Attorney, in his official capacity; David A. Schutt, Lake County District Attorney, in his official capacity; Douglass Harcleroad, Lane County District Attorney, in his official capacity; Bernice Barnett, Lincoln County District Attorney, in her official capacity; Jason Carlile, Linn County District Attorney, in his official capacity; Dan Norris, Malheur County District Attorney, in his official capacity; Walter M. Beglau, Marion County District Attorney, in his official capacity; Elizabeth Ballard, Morrow County District Attorney, in her official capacity; Michael D. Schrunk, Multnomah County District Attorney, in his official capacity; John Fisher, Polk County District Attorney, in his official capacity; Wade M. McLeod, Sherman County District Attorney, in his official capacity; William Bryan Porter, Tillamook County District Attorney, in his official capacity; Dean Gushwa, Umatilla County District Attorney, in his official capacity; Tim Thompson, Union County District Attorney, in his official capacity; Daniel Ousley, Wallowa County District Attorney, in his official capacity; Eric J. Nisley, Wasco County District Attorney, in his official capacity; Robert Hermann, Washington County District Attorney, in his official capacity; Thomas W. Cutsforth, Wheeler County District Attorney, in his official capacity; BRAD BERRY, Yamhill County District Attorney, in his official capacity, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed September 20, 2010.


Attorney(s) appearing for the Case

Michael A. Bamberger , Sonnenschein Nath & Rosenthal LLP, New York, NY; P.K. Runkles-Pearson , Stoel Rives LLP, Chin See Ming , ACLU Foundation of Oregon, Inc., Portland, OR, for the plaintiffs-appellants.

Michael A. Casper , Oregon Department of Justice, Salem, OR, for the defendants-appellees.

J. Joshua Wheeler , The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, VA, for amicus curiae.

Before: FERDINAND F. FERNANDEZ, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.


OPINION

McKEOWN, Circuit Judge:

We consider here the constitutionality of a pair of Oregon statutes intended to stop child sexual abuse in its early stages. The statutes broadly take aim at practices of "luring" and "grooming" that expose minors to sexually explicit materials in the hopes of lowering their inhibitions against engaging in sexual conduct. The "furnishing" statute, Oregon Revised Statute § 167.054 ("section 054"), criminalizes providing...

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