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Dark Horse joins suit against state

Challenging law that bars sale of certain work to minors

Milwaukie-based company Dark Horse Comics is joining owners of a dozen independent bookstores and community organizations to sue the state attorney general and all 36 county district attorneys to block enforcement of a law forbidding the sale of sexually explicit material to people younger than 18.

Attorneys for the booksellers claim the four-month-old law violates their constitutional right to free speech and criminalizes material that would otherwise not be considered sexually explicit, like textbooks, comics or magazines.

The lawsuit was filed Friday, April 25, in U.S. District Court. No date has been set for a hearing on the issue. The booksellers and organizations are seeking an injunction to block the law. State Attorney General Hardy Myers and the district attorneys have not yet filed a response.

Other plaintiffs include Powell's Books Inc., Annie Bloom's Books in Multnomah Village, St. Johns Booksellers, Twenty-Third Avenue Books, the Cascade Aids Project, Planned Parenthood of the Columbia/Willamette, the Comic Book Legal Defense Fund and the Association of American Publishers.

In the lawsuit filed by attorneys P.K. Runkles-Pearson and Michael A. Bamberger, the plaintiffs focus on House Bill 2843 that was signed into law July 31, 2007, by Gov. Ted Kulongoski. The law went into effect Jan. 1 and makes it a crime to provide sexually explicit material to a child through sales or viewing, if the material was meant to 'satisfy a sexual desire.'

There are a handful of exemptions in the law for museums, law enforcement or publications. Bookstores are not included in the exemptions and they could be liable if they sell books about sex to minors, even if the material is in a textbook, according to the lawsuit.

The lawsuit claims the new law violates the booksellers' First, Fifth and 14th amendment Constitutional rights to free speech and equal protection. It claims the law is 'overly broad' and 'promotes self-censorship by creating a chilling effect on the sale, display, exhibition and dissemination of constitutionally protected speech and expression.'

Ken Lizzi, Dark Horse Comics' general counsel and assistant secretary, said in an affidavit that his publishing company and its retail store, Things From Another World Inc., often sell graphic novels and comics that could put it in legal jeopardy. The company publishes about three dozen comics or other books each month that might include sexually explicit content, Lizzi stated.

'I believe the only way for Dark Horse to ensure compliance under the statute would be to refrain from publishing this material entirely,' he said. 'Attempting to determine, book by book, what may fall under the purview of the satute, including whether there are any 'sexually explicit' portions and if so whether such portions 'serve some purpose other than titillation' (even if I knew what that meant) is totally impractical, unduly burdensome and surely would result in our over-inclusive self-censorship.'

In an affidavit, Michael Powell said his six stores sold books of all types that could be considered sexually explicit under the new law. Those include the sale of books in stores and online on photography, graphic novels and health and wellness titles.

'Powell's has in stock over 2 million volumes constituting over 1 million titles,' Powell said in his affidavit. 'We receive on an average over 5,000 new titles per week. Obviously we cannot read each new title to determine whether there are any sexual explicit portions and if so whether such portions 'serve some purpose other than titillation' (even if I knew what that meant).'