Michigan Booksellers Challenge Censorship Law

On Tuesday, January 6, six independent booksellers, the Great Lakes Booksellers Association (GLBA), and the American Booksellers Foundation for Free Expression (ABFFE) joined publishers and magazine distributors in filing a lawsuit to challenge the constitutionality of a new Michigan law that makes it illegal to allow a minor access to any material that is "harmful to minors."

The groups contend the law places severe restrictions on the availability, display, and distribution of constitutionally protected, "non-obscene materials" to both adults and older minors, and is unconstitutionally overbroad and vague. The new law applies to any retail establishment that sells books, magazines, recordings, or other means of expression. The plaintiffs, who filed the lawsuit in U.S. District Court for the Eastern District of Michigan, are seeking a preliminary injunction to block enforcement of the law.

Chris Finan, president of ABFFE, said the law would drastically change the character of bookstores. "Today, bookstores are open, welcoming places that invite their customers to browse and explore the wide range of works that are available to them," he said. "This law threatens the freedom to browse freely."

While most states, including Michigan, have statutes making it illegal to sell "harmful" materials to minors, the new Michigan law goes beyond these laws by requiring booksellers to prevent the possibility that a minor can examine "harmful" works, including novels and works of nonfiction that do not contain pictures. Violations are punishable by up to two years in jail and a fine of up to $10,000.

Finan noted the new law is unconstitutional because it would make it difficult for adults and older minors to obtain books, magazines, and music that they have a First Amendment right to purchase. Faced with the prospect of a two-year jail sentence if a minor picks up the wrong book, he said, booksellers would have "no choice but to protect themselves" by segregating material into an "adults-only" section or wrapping books in plastic. This material, he stressed, could include romance novels, sexual education materials, health, photography, and art books, as well as classic literary texts -- all of which an older minor, under current laws, has a right to view.

Michael Bamberger of Sonnenschein Nath & Rosenthal LLP, counsel for the plaintiffs, pointed out that, in order to comply with the new law, it would require booksellers to go through their entire inventory and segregate materials that are harmful to minors. "That's part of the problem," Bamberger said. "How does a bookstore with 100,000 titles do this?"

Jim Dana, executive director of GLBA, told BTW the law would make it "impossible to do business. [GLBA] members would have to segregate material that would be harmful to minors … into a special section of the store." Ultimately, this means Main Street bookstores would have to operate like an adult bookstore, he noted, stigmatizing customers who wish to view materials that are constitutionally protected, as well as the bookstore itself, giving it the aura of a 'dirty' bookstore.

"If we put these materials in an adults-only section, it would create the labeling that we object to," Dana said. "It's also a matter of resources, too, since it involves the written word…. You'd have to read all the books," a task that is not possible for any bookseller.

The plaintiffs have requested an expedited hearing on their motion for preliminary injunction, which could occur as early as next week.

Along with ABFFE and GLBA, the plaintiffs are: Athena Book Shop in Kalamazoo; Books & More in Albion; Lowry's Books, with locations in Three Rivers and Sturgis; Nicola's Books in Ann Arbor; Schuler Books, Inc. with locations in Grand Rapids, Okemos, Lansing, and Walker; Shaman Drum Bookshop in Ann Arbor; Association of American Publishers; Comic Book Legal Defense Fund; Freedom to Read Foundation; and International Periodical Distributors Association. --David Grogan