Virginia v. Amer. Booksellers Ass'n,
484 U.S. 383 (1988)

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U.S. Supreme Court

Virginia v. Amer. Booksellers Ass'n, 484 U.S. 383 (1988)

Virginia v. American Booksellers Association, Inc.

No. 86-1034

Argued November 4, 1987

Decided January 25, 1988

484 U.S. 383


A 1985 amendment to a Virginia statute makes it unlawful for any person "to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse" certain visual or written sexual or sadomasochistic material that is harmful to juveniles. What is "harmful to juveniles" is defined elsewhere in the statute. Plaintiffs, a number of booksellers' organizations and two Virginia non-"adults only," general purpose bookstores (appellees here), filed suit in Federal District Court under 42 U.S.C. § 1983, alleging that the amendment is facially violative of the First Amendment in that it significantly and unnecessarily burdens the expressive rights of adults because of the economically devastating and extremely restrictive measures booksellers must adopt to comply; is overbroad in that it restricts access by mature juveniles to works that are "harmful" only to younger children; and is unconstitutionally vague because it is impossible to determine what standard should be used in deciding whether a work is appropriate for juveniles of different ages and levels of maturity. At the trial, the owners of the bookstores introduced as exhibits 16 general subject books they believed to be covered by the amendment, and testified that the law might apply to as much as one-half of their inventory. However, on cross-examination, they admitted their unfamiliarity with the portion of the law defining "harmful to juveniles." Nevertheless, upon finding, inter alia, that the amendment would cover between 5 and 25 percent of a typical bookseller's inventory, the court held the amendment unconstitutional and permanently enjoined its enforcement. The Court of Appeals affirmed. Although critical of the evidentiary basis for the determination, the court neither accepted nor rejected the District Court's finding as to the statute's scope. However, the court did declare that booksellers would face "significant" difficulty in attempting to comply. In so ruling, the court rejected the State's suggestion that a bookseller could avoid prosecution by merely tagging offensive materials or placing them behind "blinder" racks. The court also questioned whether treating all juveniles identically was constitutional, but did not determine the issue.

Page 484 U. S. 384


1. Plaintiffs had standing to bring suit. The "injury in fact" standing requirement is met here, since the amendment is aimed directly at plaintiffs, who, if their interpretation is correct, will have to take significant and costly compliance measures or risk criminal prosecution. The usual rule that a party may assert only a violation of its own rights must give way to the exception allowing the assertion of the free expression rights of others, since plaintiffs have alleged an infringement of the First Amendment rights of bookbuyers. The preenforcement nature of the suit is irrelevant, since plaintiffs have alleged an actual and well-founded fear that the statute will be enforced against them, and there is no reason to assume otherwise. Indeed, the statute's alleged danger is, in large measure, one of self-censorship, a harm that can be realized even without an actual prosecution. Pp. 484 U. S. 392-393.

2. In light of the case's unique factual and procedural setting, this Court will not attempt to decide the constitutional issues presented, but instead certifies two questions of statutory interpretation to the Virginia Supreme Court, answers to which will substantially aid this Court's review and may determine the case entirely. Pp. 484 U. S. 393-398.

(a) Under the unusual circumstances of the case, where the amendment's constitutionality turns upon the way in which it is read, but where none of the conflicting interpretations are reliable, and where the State Attorney General apparently is willing to concede the case if the statute is not narrowly interpreted, it is essential that this Court have the benefit of the Virginia Supreme Court's authoritative answer to the certified question whether any of the books introduced by plaintiffs as exhibits below fall within the statute's scope, and what general standard should be used to determine the statute's reach in light of juveniles' differing ages and levels of maturity. The Attorney General's interpretation that the statute covers only a very few "borderline" obscene works, and none of plaintiffs' exhibits, cannot be accepted as authoritative, since the Attorney General does not bind the state courts or local law enforcement authorities. Moreover, the District Court's holding that the law applies to up to a quarter of a typical bookstore's inventory is not supported by reliable evidence, since the bookstore owners who testified were unfamiliar with the statutory definition of "harmful to minors." Nor can the Court of Appeals' construction that the amendment would confront booksellers with a "substantial" compliance problem be relied upon, since, although it criticized the basis of the District Court's holding, the Court of Appeals gave no alternative basis for its own determination. Pp. 484 U. S. 393-396.

(b) The question whether, as asserted by the State at oral argument, the amendment is satisfied if a bookseller, as a matter of policy,

Page 484 U. S. 385

prevents a juvenile observed reviewing covered works from continuing to do so, even if the restricted materials are not segregated from nonobjectionable works, and, if not, whether the statute would be complied with if the store's policy were announced or otherwise manifested to the public, is also certified, since an affirmative answer to the first alternative would mean, while a positive response to the second alternative might mean, that the burden to the bookseller, and therefore to the adult book-buying public, is significantly less than that feared and asserted by plaintiffs. There is some advantage and no cost, either in terms of the First Amendment chilling effect or unnecessary delay, in certifying this question, which proffers a narrowing construction that is neither inevitable nor impossible, in light of the unusual circumstances of this case; i.e., that another question is already being certified, that enforcement of the statute will remain enjoined throughout the certification process, and that no state court has ever had the opportunity to interpret the pertinent statutory language. Pp. 484 U. S. 396-397.

802 F.2d 691, questions certified.

BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, post p. 484 U. S. 398.

Page 484 U. S. 386

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