In M.S. News Co. v. Casado,^[740] the United States Court of Appeals for the Tenth Circuit upheld a Wichita, Kansas, ordinance which restricted the display of material "harmful to minors."^[741] The Wichita ordinance defined "harmful to minors" as any

description, exhibition, presentation or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when the material or performance, taken as a whole, has the following characteristics:

1. The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors; and
2. The average adult person applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement or sado-masochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors and
3. The material or performance lacks serious literary, scientific, educational, artistic, or political value for minors.^[742]

The ordinance also provided criminal penalties.

The penalties may be imposed when any person having custody, control or supervision of any commercial establishment shall knowingly:

1. display material which is harmful to minors in such a way that minors, as a part of the invited general public, will be exposed to view such material provided; however, a person shall be deemed not to have "displayed" material harmful to minors if the material is kept behind devices commonly known as "blinder racks" so that the lower two-thirds of the material is not exposed to view.^[743]

The court of appeals found that the definition of "harmful to minors" properly tracked the standards enunciated in Ginsberg v. New York,^[744] and Miller v. California.^[745] The requirement that the lower two-thirds of the material be covered was neither over-broad nor vague.^[746] While the ordinance did restrict adult's opportunity to view the materials, it did not prevent an adult from purchasing them.^[747] The Court found the ordinance to be a reasonable time, place, and manner restriction justified by the government's interest in protecting minors.^[748]

A Minneapolis, Minnesota, ordinance^[749] which was more restrictive than the one enacted in Wichita withstood a constitutional challenge in Upper Midwest Booksellers v. City of Minneapolis.^[750] The Minneapolis Ordinance provided,

It is unlawful for any person commercially and knowingly to exhibit, display, sell, offer to sell, give away, circulate, distribute, or attempt to distribute any material which is harmful to minors in its content in any place where minors are or may be present or allowed to be present and where minors are able to view such material unless each item of such material is at all times kept in a sealed wrapper.

1. It is also unlawful for any person commercially and knowingly to exhibit, display, sell, offer to sell, give away, circulate, distribute, or attempt to distribute any material whose cover, covers, or packaging, standing alone, is harmful to minors, in any place where minors are able to view such material unless each item of such material is blocked from view by an opaque cover. The requirement of an opaque cover shall be deemed satisfied concerning such material if those portions of the cover, covers, or packaging containing such material harmful to minors are blocked from view by an opaque cover.^[751]

The Booksellers maintained that the requirement of a sealed wrapper was unduly restrictive as to an adult's right to peruse the materials which were harmful to minors but not to adults.^[752] The Court concluded that any inconvenience suffered by adult patrons was not sufficient to render the restrictions unconstitutional.^[753] if adults wanted to peruse the materials covered by the ordinance, the Court reasoned that they would be able to do so in one of several ways: 1) ask a clerk to remove the wrapper; 2) view an "inspection copy" kept behind the store counter, or 3) view the material in an "adults only" pornography outlet that excludes minors.^[754]

Display laws which define "harmful to minors" with language other than the Ginsberg standard have been found unconstitutional.^[755]

While opaque covers and sealed wrappers are a permissible means of restricting the display of sexually explicit materials to minors, a Virginia statute which simply made it unlawful to display material harmful to minors in a manner "whereby juveniles may examine and peruse it" was found unconstitutional.^[756] The Virginia statute contained no provisions for the use of opaque covers and the court found that outlets would face unreasonable burdens in complying with the statute.^[757] They would have to deprive adults of the material, remove it from their shelves or ban minors from their stores.^[758] The Court also found the idea of outlets restructuring their premises and creating an "adults only" section to be unreasonable.^[759] The Court concluded the statute was over-broad as a time, place and manner restriction.^[760] A requirement of opaque covers or "blinder racks" would have narrowed the scope of the restriction and could have provided the basis for the court upholding the statute in this case.^[761]

Notes