William H. Rehnquist: We will hear argument first this morning in No. 86-1034, Virginia v. American Booksellers Association. Mr. Smith, you may proceed whenever you are ready.
Richard Bain Smith: Mr. Chief Justice, members of the Court, may it please the Court, we are here this morning on a case involving a 1985 amendment to a Virginia statute shielding the exposure of juveniles to certain sexually explicit material by regulating the manner of its display, and despite outward appearances, frankly, from reading both sides' briefs, I would suggest to this Court that the issue in this case is really very simple, because we really have one issue, and the issue turns on the type of material that this amendment affects. Now, from the start of this litigation, from literally the first page of the transcript, the plaintiffs in this case have painted a picture of a statute with a very broad range effect, a range of material involving material with great beauty and great literary value, a range of material that they include James Joyce's Ulysses, William Faulkner's Sanctuary, and even the Penguine Book of Love Poetry, which is an anthology of all the great poems of the English language from Robert Browning to Alfred Lord Tennyson. If that range is correct, if they are correct that this amendment involves that material, then we lose the case, and I submit to the Court that we should lose the case, because the Commonwealth of Virginia does not desire to restrict in any way, directly or indirectly, that type of material. But by the same token, if the material affected is not this broad range, then I would submit to the Court that the plaintiffs cannot prevail, because every burden that they speculate about, every terrible effect that they speculate about, all of their evidence in the District Court, everything in their brief, and I am sure everything that Mr. Bator is going to say this morning turns on that concept of this broad range material, and I would say--
William J. Brennan, Jr.: This is a facial attack, is it not?
Richard Bain Smith: --Yes, Justice Brenner, it is a facial attack. I would submit to the Court that the statute they are attacking, the statute involving this broad range of material is a hypothetical statute. It does not exist in Virginia.
Sandra Day O'Connor: Mr. Smith, did the state concede at the appellate level below that books such as Hollywood Wives would be covered by the statute?
Richard Bain Smith: Justice O'Connor, I am sure today that the day that I die my tombstone is going to say "Richard B. Smith said Hollywood Wives was obscene. " I have said it over and over again. What we said was, one of their witnesses said, of all the exhibits that they put in, of all their exhibits, that was the only one that she said she thought children should not see. And so in the Court of Appeals and the brief, I think it was in a footnote, I said, of all the exhibits, that was the only one that might be involved based on what she had said. I have since gone back... I came up, I looked through all the exhibits. Not one exhibit they have submitted falls within this statute, including Hollywood Wives. Now, what we suggest to the Court this statute involves is not this broad range of conceded beauty, conceded literary value, of very narrow range. This statute deals with borderline obscenity. It deals with exactly the same thing that Ginsburg v. New York dealt with, borderline obscenity.
Sandra Day O'Connor: Well, what is your point, that the appellees had no standing below?
Richard Bain Smith: Justice O'Connor, I would submit that... I agree with what Mr. Bator said in his brief, that really the standing question and the merits question here turn on the same thing. If the material they are talking about is this broad range, then they have standing, because concededly that is the type of material that they are displaying and have been selling to juveniles, and we concede that, what they are talking about. But the point is that the burden that they have suggested exists here is that because of this broad range it is impossible for them to be able to comply with the statute both financially and otherwise without putting themselves out of business, or at least severely restricting their business. And because of that, they... both their First Amendment rights and the First Amendment rights of adults will be overly restrictive. And that, I think, is the importance of this broad range effect, because if we are talking about this narrow range of borderline obscenity, for one thing, there is nothing in the record to indicate that there is any burden whatsoever placed on them by that type of material. And secondly, I would suggest to the Court that that is--
Sandra Day O'Connor: Well, how are we supposed to decide that, by looking at the words of the statute?
Richard Bain Smith: --I would suggest to the Court two ways. First, the amendment and the definitional statute, because that is something that the plaintiffs have purposely ignored in this case. It is something that their witnesses below were never shown, was the definitions of the material involved in this case. And I would submit that both from the face of the statute and their evidence supports that there is this narrow range, and I say that for this reason. The definitions involved here are the same ones that the statute in Ginsburg versus New York used. It is not just any sex, any sexual content that is in a book. And that is where they have made their big mistake. They have assumed all the way through that if there is any sexual content whatsoever, then this material falls within our amendment.
Byron R. White: Where did this case come from, what court?
Richard Bain Smith: District Court in Alexandria, and then up to the Fourth Circuit.
Byron R. White: Didn't those courts have some view of the breadth, the reach of the statute?
Richard Bain Smith: They never really focused on it. The District Court never discussed--
Byron R. White: Well, they must have had some notion of what the reach was to do what they did to the statute.
Richard Bain Smith: --The Fourth Circuit did a very strange thing. The Fourth Circuit refused to accept any of the findings of the District Court below, and then they took some findings--
Byron R. White: It seems to me they thought it was much broader than you say it is.
Richard Bain Smith: --Justice White--
Byron R. White: Is that right or not? Did they view it much more broadly than you do?
Richard Bain Smith: --They were talking about a different statute, because they were looking at a statute from Georgia. That--
Byron R. White: Well, you still don't answer my question.
Richard Bain Smith: --They never came to grips with this issue.
Byron R. White: With the breadth of the statute?
Richard Bain Smith: They never discussed one way or the other. What they did, they talked about a case from Georgia in which evidence there dealt with a statute that the Court there found had this broad reach, and that is what--
Byron R. White: Well, I assume that if we found that the Court of Appeals or the District Court... the Court of Appeals defined this statute more broadly than you do, we might very well take the Court of Appeals view of what the meaning of a state statute is.
Richard Bain Smith: --As I said, if you take the broad view, we lose, but I would suggest that what the Court of Appeals did--
Byron R. White: Well, did the Court of Appeals take the broad view?
Richard Bain Smith: --What they did was, they said, we assume that there are these burdens. They never got into construing the statute one way or the other, and I would submit to the Court that even if the Court of Appeals had actually gotten to the statute, we are asking this Court to look at it a second time, because we are suggesting that it is a matter of law, not as a matter of fact.
William H. Rehnquist: Did you ask the District Court to abstain in order to obtain construction of this from the Virginia courts?
Richard Bain Smith: There was a request for an extension. We were... the Attorney General's office was brought into this case on the certification of 2403(b). One of the other defendants and all the defendants did ask the District Court to abstain. And ironically, the reason the District Court refused to abstain was because he said there was no unclear parts of the statute, and yet for the last two years both the plaintiffs and the state have been arguing over the meaning of all these terms.
William H. Rehnquist: Now, did you raise that question in the Fourth Circuit, the District Court's failure to abstain?
Richard Bain Smith: We raised the question of the District Court should have applied the narrowing constructions of the statute. We did not in so many words say the District Court should have abstained in the sense of Abstention Doctrine. We were arguing that under the First Amendment overbreadth test the District Court should have narrowed the construction.
William H. Rehnquist: Well, those are two quite different points. So you didn't preserve the abstention argument, did you?
Richard Bain Smith: The plaintiffs say we did. The plaintiffs say we have been arguing... that is what we have been arguing all along, and the Court of Appeals did in fact say that abstention... they addressed the issue and said abstention was not appropriate.
William H. Rehnquist: The Court of Appeals decided that... they passed on it.
Richard Bain Smith: They passed on it, if I am not mistaken.
Byron R. White: Didn't the Court of Appeals accepted the District Court's finding that this statute would affect a certain percentage of the materials in the bookstores?
Richard Bain Smith: No, sir.
Byron R. White: I thought it accepted a finding that from 5 to 50 percent.
Richard Bain Smith: What they said was this, and this is what I was starting to say earlier. I have never seen this done in any case. The Fourth Circuit said the evidence presented below is so minimal that we can't make a determination from what the District Court--
Speaker: Of what?
Richard Bain Smith: --Of the percentage of books involved.
Byron R. White: But the District Court found that.
Richard Bain Smith: The District Court made that finding. Then the Court of Appeals say, but we assume that it does, and then they went off on this tangent on the statute in Georgia that has a completely different statute than Virginia's, but I would suggest to the Court that the reason that this statute deals with borderline obscenity and not this broad range, as I said earlier, it is from the face of the statute, it only involves certain very narrowly restricted types of activities. It has to have--
John Paul Stevens: May I just go back to Justice White's question for a minute? In Footnote 9, the Court of Appeals ends the footnote, saying, "The District Court found that a significant percentage of the inventory of the average general bookstore varying between 5 and 25 percent falls within the amendment's restrictions. " My question is, did you ask that the Court of Appeals set aside that finding as clearly erroneous on appeal?
Richard Bain Smith: --I cannot remember. I honestly cannot remember.
John Paul Stevens: Because if you didn't should we not accept that as a factual determination?
Richard Bain Smith: If you read on with the footnote, Justice--
John Paul Stevens: That is the end of the footnote.
Richard Bain Smith: --If you read on with the footnote, they say, and the state said there is a very miniscule amount of material involved.
John Paul Stevens: Yes, you argue that, and then the last sentence is the one that the District Court found 5 to 25 percent.
Richard Bain Smith: Right, and the Fourth Circuit never said who was right, and when you go back up to what that is footnoted to, the Fourth Circuit said, whatever, we are going to assume that there is this broad range, and they cited to this case in Georgia that is a completely different statute involving a completely different range of material.
John Paul Stevens: Let me just put it this way. Is it correct that your position in this Court depends on our disagreeing with the District Court's finding of facts?
Richard Bain Smith: Yes.
Byron R. White: So if it is 25 percent, you lose.
Richard Bain Smith: Yes.
Antonin Scalia: Well, you call that a finding of fact, Mr. Smith?
Richard Bain Smith: No, sir.
Antonin Scalia: Are you sure that is a finding of fact? whether, what books in a store are covered by a particular statute? That is just a factual finding? That is all it is?
Richard Bain Smith: As I said earlier, we--
Antonin Scalia: Do we have to take whatever the District Court says about that?
Richard Bain Smith: --I believe... I think this Court has made it--
Antonin Scalia: Does it know how many cows there are in Virginia?
Richard Bain Smith: --This Court has made it clear for the last three decades that the question of what is obscene in a book is a matter of law, not as a matter of fact. And you have to remember--
Antonin Scalia: I am not talking about what is obscene. I am talking about what the statute covers. Is that a question of fact, what books the statute covers, whether obscene or not?
Richard Bain Smith: --No, Justice Scalia. I believe it is a question of law. And when you have this--
Byron R. White: But it certainly has to be based on the evidence.
Richard Bain Smith: --It was based on--
Byron R. White: I mean, a court isn't going to find what percentage of books in a bookstore are covered by the statute without... even if it knows what the statute means, it has got to know what books are in the store.
Richard Bain Smith: --It was based on an assessment of two things. First, the District Court said based upon the plaintiff's testimony and the exhibits, and the Court's review of the exhibits, I am submitting to the Court that as far as the exhibits are concerned, that is clearly a matter of law whether they are obscene for juveniles.
Byron R. White: All right, so say it is a matter of law. Then what do we do with what the Court of Appeals did to the District Court's statement of the law?
Richard Bain Smith: Well, there again, they never really said what... they had that in the footnote. They just threw it out that that is what the District Court said, but if you read the actual text of the case, they didn't accept it. They just said, we are going to assume this, and they have a footnote, and the footnote says, well, the District Court says this, and the state says that. They never say the District Court, they never say the state was wrong, they just say, we are going to assume it is based on what happened in Georgia, which is a completely different situation than Virginia.
William H. Rehnquist: In order to decide what percentage of one's inventory is affected by a statute, you need to know first what the inventory consists of, and second, what the statute means, don't you?
Richard Bain Smith: Yes, Mr. Chief Justice, and I would submit to the Court, which was the point I was trying to get to with Justice White, as far as the evidence presented, it was based on the testimony of two bookstore owners who admitted on cross examination that they didn't have the faintest idea what the definitions were. All of their testimony as to all of the material affected was given in a complete vacuum. There was no basis for it. There was, and I will, if I could for just a moment, this is indicative of both testimony directly from the appendix, and it will be very short.
John Paul Stevens: Before you do that, may I just--
Richard Bain Smith: Yes, sir.
John Paul Stevens: --Even if the witnesses didn't understand what the statute means, do you also contend the District Court didn't understand the statute?
Richard Bain Smith: I would submit to the Court that for the Disrict Court to find that the exhibits that these plaintiffs presented fell within the amendment, then the District Court completely misread Virginia law, because none of their exhibits fall within the statute.
Byron R. White: Well, you also there are suggesting that the plaintiffs who tried this case, those lawyers really didn't understand what was going on, that they really failed in their proof.
Richard Bain Smith: Oh, yes, sir, I think that is exactly right, they failed in their proof, and I suggest to the Court that it was purposeful, because I think that from the start of this litigation, it is a lot easier if you are going into a federal court and claiming that the state is trying to restrict James Joyce's Ulysses than it is to go in and say the state is trying to restrict Hustler. And I cannot imagine any other reason why they never showed their own witnesses the definitions before they testified. They told their witnesses... their witnesses came in with a group of books. Their testimony was, and questionings from the plaintiffs, do you think that any book with a picture of nudity in it is going to be affected? Yes. That is not true. That has nothing to do with the Virginia statute. The Virginia Supreme Court has ruled, just like this Court has, it has to be a lewd view of the genitals, not mere nudity, and this permeated their testimony.
John Paul Stevens: Have they done that with respect to the juvenile statute?
Richard Bain Smith: I am sorry, Justice--
John Paul Stevens: Have they so ruled with respect to the juvenile statute as opposed to obscenity generally?
Richard Bain Smith: --They have ruled with respect to a similar statute. They had... before this Court had the case of New York versus Ferber, which was the so-called kiddie porn case, Virginia had essentially that same case, and in talking about what is obscene for juveniles, the Virginia Supreme Court expressly held, citing Miller versus California, I believe, that whether it is adults or juveniles, mere nudity cannot be obscene for juveniles. That case is cited in our brief, Freeman v. Commonwealth.
John Paul Stevens: Mere nudity can never be obscene for a juvenile?
Richard Bain Smith: Mere nudity in the sense of just a picture of the human body. They went on to say that the nudity has to be a lewd exhibition of the genitals, as this Court gave as the example in Miller v. California. And I would just like to read, if I can get back to the record just for a moment, it is a question to their... and this sums up their entire case upon which this is based. This is after they have presented all of the books. This is after they have presented all of their evidence. On cross examination the state's lawyer asked, "Question: Ms. Ross, do you know what the legal definition of harmful to juveniles is? " "Answer: No. " "Question: Has anyone read that to you? " "Is there one? " "Question: No one ever told you there was one, did they? " "Answer: I don't know. " "Not that I remember. " "What is the legal definition? " That was the context of their case in the District Court. Taking that--
Byron R. White: Did they ever just describe what kind of books were in these stores?
Richard Bain Smith: --They are general bookstores, just the typical... one is Ampersand Books in Alexandria, and the other one--
Byron R. White: Well, did they say... did they describe what kind of books they had in their stores?
Richard Bain Smith: --Yes, their exhibits were normal books that might--
Byron R. White: Well, let's assume the District Court looked at those books, then read the statute, and decided that X percent of those books in that store would be covered. Now, let's just assume the District Court went through that routine. You are asking us to disagree with the District Court.
Richard Bain Smith: --I am asking the Court that this is a matter of law, that the District Court was wrong about that, that none of their exhibits--
Byron R. White: Well, that means, I suppose, then we have to really look at... go through the exhibits, look at the evidence, and then decide what the statute means and say... you want us to say then that the Court of Appeals and the District Court were wrong.
Richard Bain Smith: --I will wager this case on one exhibit, Plaintiff's Exhibit No. 4, The Penguin Book of Love Poetry. If that book falls within this statute, then we concede the case. You don't have to look at all of them. Just look at that one book. Or if you want to look at all of them, the same thing goes for all of them, because every one of them--
William H. Rehnquist: I don't want to look at any of them. You are basically arguing that the statute has a narrower meaning than the lower court said, and presumably it could affect 80 percent of the books in a pornographic bookstore or 2 percent of the books in a regular. The percentage of books affected across the board isn't so important. It is what the statute means in terms of our decided cases.
Richard Bain Smith: --I think it is a joint question. I think it is important what the statute means, but secondly, I think the number is important as far as these plaintiffs are concerned, because they have built their whole case on the fact that there is such a large amount that their whole case on the fact that there is such a large amount of material involved.
William H. Rehnquist: But suppose there were a bunch of people that concededly deal in pornography. Would it make much of a case for them to come in and say, look, this statute restricting juvenile access affects 90 percent of our books?
Richard Bain Smith: No, because then I would suggest this Court has no problem with the case, because then you would know you were dealing with borderline obscenity in this Court in every case in this area always found that that is... the periphery of the first amendment. As Mr. Justice Stevens said in Young v. American Minitheaters, there is very little, if any, interest in the uninhibited exhibition of that type of material, and that is the type of material that we are involved in.
Antonin Scalia: The percentage is really not that consequential of that percentage is derived by the proper interpretation of the statute, as you say it is proper, then there wouldn't be anything horrible about coming down on the bookstore that happens to have 20 percent of it or 25 percent of it. It is important from this context. They came up with all these horrible ways, the only ways they could comply with the statute, and one of which was borrowing... totally barring juveniles from their bookstore. I would suggest to the Court if you are talking about a normal everyday bookstore, barring juveniles from that bookstore because of supposedly this large amount of material would be devastating. I would suggest to the Court that borrowing juveniles from an adult bookstore that has 90 percent of the inventory that is borderline obscenity would not be the kind of burden that this Court was concerned about in the cases dealing with this type of situation. What is the narrowing language in the statute that you think was not adequately considered by the courts below?
Richard Bain Smith: Well, there are two parts. The first part is the definitions themselves. The definitions in Section 18.2-390, which I set out in my brief, very narrowly define types of sexual activities that are involved--
Sandra Day O'Connor: Those are the definitions of what is harmful to juveniles?
Richard Bain Smith: --They are the definitions of the material involved in the statute. Even if a work has that material, it is still not within the statute. It still has to be harmful to juveniles, and that is what the Eighth Circuit said in the Upper Midwest case pushes this case up to the borderline of obscenity, because... and I will give you a quick example. In Young v. American Minitheaters, those bookstores and theaters were found to be adult bookstores based on just the fact of the type of sexual material they involved, sado-mashochistic abuse, lewd nudity, this kind of thing. Those types of materials would not fall under this statute, because you have to go a step further. It has to be obscene for juveniles, and it is exactly what the Eighth Circuit was talking about in the Upper Midwest case that I cited in the brief.
Byron R. White: Well, isn't your argument on this percentage business, isn't it that you are contending that this statute has only a de minimis consequence to these, the people who... the plaintiff, the plaintiffs' bookstores?
Richard Bain Smith: Yes, sir.
Byron R. White: That is right?
Richard Bain Smith: Yes, sir.
Byron R. White: And therefore it really is sort of a miniscule burden to cause them to go through the steps to comply with the statute.
Richard Bain Smith: Given the... interest to the state in protecting its juveniles, given that it is borderline obscenity, that is exactly correct.
Byron R. White: But if it affects a much larger percentage, you seem to agree that the steps they would have to go through would be too burdensome.
Richard Bain Smith: As far as the everyday bookstore, that's correct.
Speaker: Yes.
Richard Bain Smith: But one of... and let me make this clear, getting back to what Justice Scalia was asking earlier. For an everyday normal bookstore to bar juveniles because of some part of their material, a miniscule part, would be devastating for them. For an adult bookstore with 90 percent books borderline obscenity, who cares? I would like to reserve the remaining time for rebuttal unless the Court has any further questions.
William H. Rehnquist: Thank you, Mr. Smith. We will hear now from you, Mr. Bator.
Paul M. Bator: Mr. Chief Justice, and may it please the Court, in Butler v. Michigan this Court announced a fundamental First Amendment rule, one from which it has never deviated. The states are not free to place substantial restrictions on the access of adults to books and magazines that are protected by the First Amendment, even if the purpose of the protection is to safeguard children. Our central submission today is that the Virginia nude display statute on its face violates this fundamental principle, because unlike the preexisting sales statute, which had no impact whatever on adults, this statute requires booksellers immediately to place important new restrictions on adult access to books protected by the First Amendment. It places an immediate and affirmative obligation on booksellers to screen their inventory, to reorganize their displays, and to purge from their shelves, where books are freely and readily available, all books that have enough sexually explicit materials in them that they are not suitable for sale to children.
William H. Rehnquist: Why couldn't you just have an adults only part of the bookstore?
Paul M. Bator: I beg your pardon?
William H. Rehnquist: Why couldn't you just have an adults only part of the bookstore?
Paul M. Bator: Well, Your Honor, we think that would involve a very substantial restriction on the access of the adults.
William H. Rehnquist: But all you'd be restricting would be juveniles, I would think.
Paul M. Bator: Your Honor, there are a couple of reasons why that would be very difficult or onerous for adults. First of all, books are sold in large numbers of places which are not bookstores. We have newsstands, we have bookstands in supermarkets, at airport and drugstore counters. They can't have two different sections. It really is not feasible for them to have an adult section. Secondly, the District Court--
William H. Rehnquist: Are they members of your... are people like that members of your organization?
Paul M. Bator: --Yes.
William H. Rehnquist: Airport bookstands?
Paul M. Bator: Yes, we represent really the whole gamut of booksellers and distributors, including those, Your Honor. Now, another problem with--
Byron R. White: And hard core bookstores?
Paul M. Bator: --I beg your pardon?
Byron R. White: And hard core bookstores?
Paul M. Bator: No, our clients do not include any adult or porno bookstores whatever. We do have two 20 to--
Sandra Day O'Connor: Did the appellees below, Mr. Bator, make a claim that they sold books that met the definition of what is harmful to juveniles?
Paul M. Bator: --Yes, the testimony below was very clear.
Sandra Day O'Connor: I mean, well, but did the... your clients, did they claim that they display routinely books which meet the statutory definition of harmful to juveniles?
Paul M. Bator: The statutory definition under the Virginia display statute.
Speaker: Yes.
Paul M. Bator: Yes, Justice O'Connor. We have testimony in the record, very clear testimony in the affidavits as well as in the oral testimony on the part of these bookstore owners that they understood the statute to cover somewhere between 25 to 40 percent of--
Sandra Day O'Connor: Well, but did their testimony take into account the actual statutory definition, which does seem to be much more restrictive than the testimony would indicate they thought it was? There is something to be said for what the state's attorney is arguing. Or, to put it differently, Mr. Bator, if your clients indeed have 40 percent of books that meet this definition, I think you are inaccurate to say that they are not porno stores. I think it is incredible that anybody could come within this... 40 percent within this definition is very high, it seems to me.
Paul M. Bator: --No, Your Honor, because I think the statute covers a large amount of material. The statute covers a large amount of material that does not fall into this classification of what do we mean by is it porno, but that does have some sexually explicit material. I go back to both questions, because I want to be able to cover it. Your Honor, these booksellers are, of course, not lawyers, but, of course, they are the ones who have to deal with this statute.
Sandra Day O'Connor: Apparently they had not read the statute when they testified. Now, this definition defines it exactly as the Court has in Miller, only refined down to juveniles, predominantly appeals to the prurient, shameful, or morbid interest of juveniles, is patently offensive to prevailing standards and the adult community as a whole with respect to what is suitable material for juveniles, and when taken as a whole lacking in serious literary, artistic, political, or scientific value for juveniles. Did the testimony and the witnesses have in mind that precise definition?
Paul M. Bator: Your Honor, I think the witnesses testified that they read the statute, but I think they read them as an ordinary nonlawyer would read them, and they gave an explanation of how they would understand this statute, and of course that is the perspective that is important. They understood this statute to cover a substantial amount of their inventory.
Sandra Day O'Connor: Well, as I looked at it, the ordinary books like Ulysses and other things that I would think of clearly wouldn't fit within this definition, so I am just wondering whether we have two ships passing in the night here.
Paul M. Bator: Your Honor, I believe, and this now goes again to Justice Scalia's question as well, that it is a perfectly reasonable understanding of the statute and really just what this statute suggests that if you think that a book is unsuitable for sale to 13-year-old you may not display it in your bookstore. Now, that does not just include porno. That includes a large range of material which I would be rather averse to having a 13-year-old child of mine buy a in a bookstore, and that very much includes a large range of popular as well as literary works. Now, we do have a District Court finding on this. That is to say, it seems to me that the Attorney General has here said everything turns on what this statute encompasses. But we have two courts below that made findings on that issue. The District Court said they... the District Court didn't accept the testimony completely. It lowered the percentage. The District Court made its own judgment. It said somewhere between 5 and 25 percent of the inventory of the non-adult bookshop is likely to be covered here.
William H. Rehnquist: Did the District Court give its opinion as to precisely what the statute meant?
Paul M. Bator: Yes.
William H. Rehnquist: Where do we find that?
Paul M. Bator: The District Court made a finding, and it is on Page A... on Page A20, third full paragraph.
William H. Rehnquist: A20--
Paul M. Bator: A20 of the jurisdictional statement. The Court concludes that the average general bookstore carriers a significant percentage of materials varying between 5 and 10 percent that are harmful to juveniles as defined by--
William H. Rehnquist: --Now, that could mean two different things, couldn't it? It could mean that these bookstores are really then quite different than you have characterized them because they carry material that is much like that described in the Miller statute.
Paul M. Bator: --No, Your Honor, I honestly believe the record would not support that conclusion. These are ordinary bookshops.
William H. Rehnquist: But all this finding tells you is that a certain percentage of the books in the store are covered by the statute. Now, to me that doesn't militate one way or the other as to whether the statute is good or bad, because it depends on what the inventory of the bookstore is.
Paul M. Bator: Yes, but the record is replete with descriptions of what these bookstores are, and I hope very much... the women who owned these bookstores gave very vivid and interesting testimony about what it is like to run an ordinary bookshop in Alexandria or Arlington. These are the opposite of porno bookshops. Now, the District Court finding was based in the context of these bookshops and the exhibits and the affidavits and the testimony, and--
Antonin Scalia: As far as the testimony goes, Mr. Bator, it is not worth a whole lot if it comes from people who haven't read the statute.
Paul M. Bator: --I am sorry.
Antonin Scalia: I mean, as far as the testimony is concerned, it is not worth a whole lot if it was testimony by people that hadn't read the statute that they purported to be applying to the books.
Paul M. Bator: Well, the District Judge made his own finding based not only on the testimony, but the affidavits and the exhibits. The Court of Appeals was very careful not to disturb that finding, although it did say that the testimony is such that it is very hard to guess the exact percentage.
Byron R. White: --of the exact percentage anyway. It is then... that is just to... as a predicate for inquiring how much of a burden it is on adults or within the bookstore.
Paul M. Bator: It seems to me... again, this goes really to the interchange I had with Justice O'Connor. That is, it is terribly important to understand that the life of this statute plays itself out not at the level of constitutional theory or lawyers' interpretation. It plays itself out between the local bookshop and the local community, and that bookshops's fear of arrest and prosecution by the local attorney, commonwealth attorney and the local police.
Byron R. White: Yes, but it is not impossible to comply with the statute, no matter how much percentage of the books, and your submission is, and I guess it was taken below, that none of these ways of complying would remove the burden on adults.
Paul M. Bator: Our point is not that it is impossible to comply, but that the effect of good faith compliance is likely to be a very drastic restriction on the free access of adults to these books.
Sandra Day O'Connor: Well, Mr. Bator, could the bookstore set up a children's only section, not an adults only, but a children's only section, so that people who are affected are the children, not the adults?
Paul M. Bator: I suppose a bookstore could have a children only section. The real question is whether if you want to read a popular work or browse or look at a popular work of literature in an ordinary neighborhood bookstore, whether you have to enter a section that is labeled X, labeled adults only.
Sandra Day O'Connor: Well, if you had a children's only section you wouldn't have to do that as an adult. Mr. Bator, if every store had an adults only section, as you tell us would be necessary if all bookstores have large quantities of these books, do you really think it would be a great disincentive for adults to go into that section? Have they stayed away from the movies in droves when they have adults only films? Why would their reaction to general adults only sections in bookstores be any different?
Paul M. Bator: Your Honor--
William H. Rehnquist: You are being peppered with questions from both sides. Just take your time and answer them, and hope in the future they will be asked one at a time.
Paul M. Bator: --Your Honor, I feel like the hockey goalie who has pucks coming from all sides. 0 [Generallaughter.] Your Honor, on the question of the deterrence, again we have... the District Court and the Court of Appeals went into that, and there was testimony. The problem here is that the sale of books is very much affected by display, that is to say a large proportion of books are sold to people who aren't planning to go but who go in to read, to browse, and they come upon a book they rather like, so it is a very sensitive area. The District Court found that there would be a substantial deterrent to adults... I understand that that doesn't deal with Justice O'Connor's hypothetical, but if it says X rated, adults only, a lot of people are going to stay out because they are embarrassed, and they don't want... These are not people in porno bookshops. These are people in ordinary bookshops. The fact is... this is not of record, and it is just based on my New York Times reading, but as I understand it, in the movie industry as well, even though movies are different because people plan to go to a movie, it is not an impulse thing, but an X rating on a movie, as I understand it, is thought to be commercial disaster, but there is another point here, Your Honor, that I want to stress before I get back to the other side of the bench. There would be an enormous change in the general ambience and atmosphere of bookshops if what we have is an adult section, X only, and a children's section, children only. That is to say, the whole atmosphere of a bookstore that we know... every one of us has been in a bookstore on Saturday afternoon, and really that is what this case is about, is what kind of bookstores do we want? Do we want a bookstore where every book or every shelf is labeled with a government seal of approval or a government seal of disapproval? That is the issue in this lawsuit. The fact is that the life of the bookstore is free circulation for browsing, and that is what we think the statute badly inhibits. Now, there is another problem, Justice O'Connor. There is a large number of books where it would be disastrous to say children only. I mean, I guess I don't even know quite what that would mean, because there are a lot of books that are absolutely proper for kids and for grown-ups and they are just general books. I don't think we can reorganize the bookshops, this world of books and of intellect in terms of these tight rules, and really, I think our question is whether it is constitutional for the government basically to create an across the board rating system for books, and there is a great--
Sandra Day O'Connor: Well, Mr. Bator, what if the statute just said it prohibited allowing juveniles to peruse and examine material that is harmful to them?
Paul M. Bator: --I think that would be a more difficult case, although that also would create a tremendous problem for booksellers.
Sandra Day O'Connor: But it certainly wouldn't be a burden on the adults, would it?
Paul M. Bator: If the crime were for the booksellers to allow kids, I think there would be a very serious First Amendment problem, very much the same sort that the Court had in the Smith case, because the effect even of that statute would be to put pressure on the bookseller to self-censor. The vice of this statute, and I think the problem that the Attorney General has absolutely never confronted, is that this--
Byron R. White: Well, at least it would avoid the burden on the adults.
Paul M. Bator: --If the bookseller looks at the statute, even in the version Justice O'Connor gives, and decides the only safe thing to do here is if it has sex in it, put it under the counter or put it in an X-ray separate section, that is the burden on the adult.
Byron R. White: You think the burden would be to saying if you had a separate section in the bookstore that said minors not allowed?
Paul M. Bator: It would be very problematic Your Honor. I think that a lot of adults would find that intensely uncomfortable because it really labels them.
Byron R. White: As not minors?
Paul M. Bator: I beg your pardon? 0 [Generallaughter.]
Byron R. White: As not minors. It labels them that way.
Paul M. Bator: They are not. They are not minors. I think in this world everybody knows what that is all about, and it would be a very radical departure from our traditions of what bookstores are supposed to be like. If the statute as we argue applies to a large range of perfectly ordinary literary, serious and popular works, the point about Hollywood Wives, Justice O'Connor, is not for us to wrangle about whether it is covered or not, but if Hollywood Wives is covered, then there are hundreds of ordinary best sellers, potboilers of every sort that are covered here, and in a sense they ought to be covered. That is to say, there are a lot of books that we do not want the bookseller to sell to a 12-year-old, and the vice of this statute is, if you don't want it sold to a 12-year-old, you have got to remove it from the shelf.
Sandra Day O'Connor: Well, you concede that the statute, the old statute that prohibited selling the items to juveniles is constitutional--
Paul M. Bator: Yes.
Sandra Day O'Connor: --Yet surely that is a burden on the bookstore owner.
Paul M. Bator: It does put a burden on the bookstore--
Sandra Day O'Connor: Now, why is it a substantially different burden to say you won't allow juveniles to peruse the material that you can't sell to them?
Paul M. Bator: --We have two answers to that, Justice O'Connor. We think that the burden on the bookseller in the case of the display statute is more onerous, because you have to do this advance screening of the whole inventory, but the really important point is that complying with the burden in the display context is much more dangerous to the First Amendment because it restricts the access of adults. Complying with the burden with respect to sales has no impact on adults at all. But if you remove a book from the shelf, the easily accessible shelf, because you are afraid of a kid coming upon it, you have also removed it from the adult. There is another point I would like--
John Paul Stevens: May I ask you a question, Mr. Bator? Does your argument really focus on the fact that the statute applies to written material as opposed to pictorial material, you know, the magazines such as Hustler and so forth--
Paul M. Bator: --The statute does apply to both.
John Paul Stevens: --I understand it does apply to both. Would you have any objection, or does your proof support any objection to a statute which just excluded the written material?
Paul M. Bator: Well, Your Honor, that would be a more difficult case, and it is not our case, and I would hope very much that the Court would not on this record and with these briefs try to answer that question. Our position would, however, be, if you push me to the corner of saying, that the Court's cases do not support and the First Amendment should not support a lesser protection for pictures than for text, but that's--
John Paul Stevens: You would say even if the statute were limited to magazines such as Hustler, assuming they are not obscene, and Playboy and the like, and those... you have a constitutional right to have those displayed publicly.
Paul M. Bator: --Not a constitutional right to buy, but the access problem--
John Paul Stevens: But to display.
Paul M. Bator: --I think is more difficult, but of course the important point here is that that is not what Virginia has done. It seems to me we really have to focus on what Virginia has done. Virginia should not be allowed to have it both ways. That is, they have drafted a statute that at least from the perspective of the bookseller is sensibly and, as the District Court said, consensitively viewed as a broad statute that encompasses any material that has enough sex in it so you don't want it sold to a kid. Now, they--
Antonin Scalia: I don't know how you can say that, Mr. Bator, unless you are talking about a bookseller, as some of your witnesses were, who hadn't read the statute. If you read the statute, this covers very offensive material, but only very offensive material.
Paul M. Bator: --I think, Justice O'Connor, they have read the statute, but when they were cross-examined, these were women who were not used to the business of tight cross examination at law, and when they were cross examined on detail, they were vague on the detail, but that is the real world. That is how this statute is going to operate in the real world.
Antonin Scalia: Mr. Bator, may I follow up on Justice O'Connor's question about whether the statute would be all right if it merely prohibited permitting juveniles to browse as opposed to requiring you to segregate materials in a fashion so that it is impossible for them to browse? Do we have any reason... is it clear that the statute requires any more than that? If you look at the definition of unlawful act it says "It shall be unlawful to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse. " Now, "may" could well mean two things. It could mean it is possible for them to do so or it could mean it is permitted for them to do so, so it may well be that all that is necessary under the statute is a sign in the store that says juveniles not permitted to browse.
Paul M. Bator: Well, Your Honor, I don't think a sensible bookseller in the local community faced with the possibility of local police and local prosecutors would read the statute that way. The statute prescribes display. It says any display.
Antonin Scalia: The statute also has a definition of "knowingly" which seems to suggest, and knowingly, it says "knowing display", the definition of "knowingly" says that you have to know or have reason to know the age of the juvenile. Now, that suggests that there has to be some concrete occasion in which the juvenile is being allowed to browse, and you have reason to know what his age is. Isn't that a permissible reading?
Paul M. Bator: We read the "knowingly" in light of his definition again in the Virginia statute. I think the bookseller can't just sit back and say I don't know anything. I think what they have to do is make a good faith effort to comply, and compliance here means compliance with rules about display that may give access to juveniles. Now, if the statute... we are constantly dealing a little bit here with two possible statutes. I would really like to say that Virginia can't and shouldn't be allowed to have it both ways. That is what they do is, they draft a statute that is broad enough so that the bookseller is under pressure to self-censor and to comply broadly. And then the Attorney General comes in here and says, oh, no, no, no, this statute is--
William H. Rehnquist: Well, did you object to a motion to abstain in the District Court?
Paul M. Bator: --There was, Your Honor. The District Court found it is not an appropriate case for abstaining.
William H. Rehnquist: Did you oppose the motion--
Paul M. Bator: Yes.
William H. Rehnquist: --of the state to abstain?
Paul M. Bator: Yes, we have not in any way agreed that... in fact, we do not think the law would permit abstention here. Now, the Attorney General did not--
William H. Rehnquist: Well, certainly you could have gotten a conclusive construction of the statute by abstention, a statute which we are now arguing about the meaning of.
Paul M. Bator: --There is no readily available narrowing construction here. The Attorney General has not come up with a standard here.
William J. Brennan, Jr.: Well, may I ask, Mr. Bator, does Virginia have a certification procedure?
Paul M. Bator: It does, yes.
William J. Brennan, Jr.: Was any effort made to ask the District Judge to resort to that?
Paul M. Bator: We do not think that there would be a meaningful question that could be certified.
William J. Brennan, Jr.: As to definition as to what the statute meant?
Paul M. Bator: We don't think a meaningful question could be certified on that because the Attorney General himself has not come up with an intelligible standard. I mean, what he said is miniscule.
William J. Brennan, Jr.: But in any event--
Paul M. Bator: I beg your pardon?
William J. Brennan, Jr.: --no motion was made to the District Court to certify.
Paul M. Bator: In the District Court there was a motion made. We opposed it. I don't--
William J. Brennan, Jr.: To certify?
Paul M. Bator: --Oh, no motion to certify, just to abstain. Now, I think the abstention point was abandoned in the Court of Appeals. The Court of Appeals did not pursue it. And I don't think it was pursued in any question to this Court. We did brief the question because we thought that it was an important problem in the case. Whether the Court should say, well, let's wait and see, somehow see what the state courts say, but we think that would be inappropriate. The bookseller can't wait and see. The bookseller has to comply now. And the fundamental problem is that this so-called miniscule construction has really no content. That is, the Attorney General has not come up with an intelligible standard for what this so-called narrow construction is. The Court's cases--
Sandra Day O'Connor: Well, isn't it just to apply the definitions as they are written in the statute for what is harmful to juveniles? That is pretty narrow.
Paul M. Bator: --No, we read that as being very broad, and the District Court and the Court of Appeals read it as being broad, and it would be really unprecedented for this Court to reverse two courts on that issue of state law. That would be quite an unprecedented thing for the Court to do, is to reverse two courts on the meaning of a state statute on which they have agreed. I want to finish one thought if I--
Antonin Scalia: Excuse me, Mr. Bator. Where do the courts describe the meaning of it? Where do they describe the meaning of it, that we would be reversing their description of the meaning of the state law?
Paul M. Bator: --Well, I--
Antonin Scalia: As opposed to just saying it covers 40 percent of all books--
Paul M. Bator: --I think their understanding of the meaning of the statute is implicit in what they understood the impact of the statute to be, that is, it is implicit in their description of what this statute does to the ordinary bookshop under the threat of prosecution and punishment by the local police and local prosecutor. I mean, what we... it seems to us that there is one thought I have been trying to get out that I would like to get out here, that we are talking about the First Amendment. We are talking about the Butler rule, which places a very serious rule against the state in doing things that can have an impact on adults. Now, Virginia passes this broad statute which the consensus of the testimony and the finding of the District Court and the Court of Appeals places a substantial burden on adults. Now, the Attorney General comes in here and says, no, no, this statute is a paper tiger. I don't think that counts as the kind of narrowing construction that this Court said can save an overly broad statute. That is what this Court should not do, is allow the statute to be reinterpreted on the... because the Attorney General comes in here and sort of says, well, we are not going to enforce this statute against any respectable bookshop. Anyway, it is not the Attorney General who enforces the criminal law of Virginia, it is the local Commonwealth Attorneys. This statute places a serious burden of self-censorship on the bookshops, and complying with that burden we feel will place a very substantial inhibition on what grown-ups have always done, freely go to a bookshop, browse in the bookshop, and decide what they want to read, decide what they want to buy, and that impact on adults, which doesn't exist at all in a sales situation we think is the fundamental vice of this statute. Self-censorship leading to an access burden on adults is what makes this statute unconstitutional under the First Amendment. Like the battered hockey goalie, I will now retire unless there are questions.
John Paul Stevens: --Before the goalie retires, may I ask this question? I have been thinking, as Justice Brennan apparently suggested, about the possibility of certification. Are there three or four works that are identified in the record with respect to which the two of you disagree as to whether they are covered by the statute?
Paul M. Bator: I am sorry, Justice Stevens. You will have to--
John Paul Stevens: Are there two or three specific works of literature as to which you think the statute covers and your opponent says it doesn't cover with respect to which we could ask the Virginia Supreme Court whether it covers?
Paul M. Bator: --I suppose you could frame an abstention or a certification based on one or two or three books.
John Paul Stevens: Do you know of any such examples that come to mind that sort of test what the breadth of the statute would be?
Paul M. Bator: I suppose that there is a disagreement about Portnoy's Complaint, which is not a book I would like to have sold to a 12-year-old, and which I think is clearly covered, and I guess the Attorney General says today that it is not covered, but suppose... suppose the Virginia Supreme Court tells us it is covered or not covered. Is that the kind of intelligible narrowing construction of the statute? That is to say, it is a single book, and this Court's cases make it very clear that a whole series of litigations to narrow a statute are not sufficient. There has to be a quick cure.
Sandra Day O'Connor: Well, Mr. Bator, would it make a difference if the Court said the statute was complied with if the bookstore owner just said juveniles were not permitted to browse? Would that make a difference?
Paul M. Bator: Well, it would make a difference, but we do not think it would save the statute.
Sandra Day O'Connor: So that is a certifiable question.
Paul M. Bator: We do not think it would save the statute, Your Honor. First of all, juveniles also have a constitutional right of access to books. I mean, that is a major problem.
Sandra Day O'Connor: But they don't have a right of access to books that are harmful to minors within the meaning of this definition, do they?
Paul M. Bator: So again what you would have to do is, you would have to reorganize the entire display of the bookshop and you would have books that are for everybody, and some just for kids, and just some for adults, and we think that that would produce a major change in the First Amendment spirit of how bookstores are run.
William H. Rehnquist: Thank you, Mr. Bator. Mr. Smith, you have six minutes remaining.
Richard Bain Smith: Mr. Chief Justice, I will not take it all. The reason we didn't ask to have this case certified below was because this Court now has a tool that neither the District Court had nor the Fourth Circuit had. Virginia's certification procedure only became effective April of this year. There was no certification procedure available.
William J. Brennan, Jr.: That is effective for this Court now, Mr. Smith?
Richard Bain Smith: We would certainly say it is. Yes, sir. It is effective... it was effective April 1st, 1987. It is Rule 5:42 of the Rules of the Supreme Court of Virginia. It is very comprehensive, and, Justice Stevens, I won't ask that just we agree on four exhibits be sent back, you send every exhibit that the plaintiffs put into evidence below, and I will take the same position before the Supreme Court of Virginia that I am taking here that not one of those falls within the statute.
Speaker: Specifically Portnoy's Complaint.
Richard Bain Smith: Portnoy's Complaint was not an exhibit.
John Paul Stevens: Are you familiar with the book?
Richard Bain Smith: Yes. That is not covered.
John Paul Stevens: That is not covered.
Richard Bain Smith: That is not covered.
John Paul Stevens: So you do have a square disagreement on that. Let me ask you another... may I ask you another question--
Richard Bain Smith: Certainly.
John Paul Stevens: --on the meaning of the statute? In the definition of harmful to juveniles... I had it in front of me a minute ago... the last subparagraph is on A42 of the jurisdictional statement... has a subparagraph C, "is, when taken as a whole, lacking in serious literary, artistic, political. " and so forth, "value", but the introduction of that paragraph says "quality of any description or representation in whatever form. " Now, my question is, supposing you have a ten-chapter book, one chapter of which would satisfy the statute. Does the book satisfy the statute or not?
Richard Bain Smith: Justice Stevens--
Speaker: The book as a whole.
Richard Bain Smith: --if you would look at Section 18.2-391, which is not the definitional statute but the actual statute under... it is paragraph 2. It starts off, it says, "Any book, pamphlet"--
John Paul Stevens: I understand.
Richard Bain Smith: --The last line of that answers the question. Not only must be harmful to juveniles, it has to be taken... the book has to be taken as a whole, just as with this case you cannot pull isolated passages out.
John Paul Stevens: I understand that Paragraph 2 does, but the definition of "harmful to juveniles" does not. It is only because of the additional language in Paragraph 2 that you answered my ten-chapter book the way you do.
Richard Bain Smith: Well, if one chapter is obscene, and then the other nine... or obscene for juveniles, and the other nine chapters are fine for juveniles, would that book fall within it? No, sir.
John Paul Stevens: It wouldn't fall within... that wasn't my question. It wouldn't fall within subparagraph 2 of 391, but it would fall within the definition of subparagraph 6 of 390, would it not?
Richard Bain Smith: That is where... the reason hat is where it becomes important to look at that... what I just--
Speaker: I understand.
Richard Bain Smith: --the part I pointed you to, because that is dealing with books. If we are talking about just a picture, then the picture in itself is as a whole, but that is why they added in again, taking... in other words, you have got... with respect to books, you have got two taken as a wholes. Not only you have taken as a whole as far as harmful to juveniles, but the book as itself has to be taken as a whole.
John Paul Stevens: Let me be sure. If I merely had the definition of harmful to juveniles, the chapter we speak of would be harmful, the book as a whole would not, but you are saying 391 would not apply to that because of subparagraph 2 to that ten-chapter work?
Richard Bain Smith: I don't think it would under either way, and the reason I say that is, this is the Virginia version of Miller versus California as it relates to juveniles, and the entire work has to be taken as a whole. You can't pull an isolated passage out of the book, and that has been this Court's jurisprudence for 30 years, and that is what the Virginia Supreme Court has always followed. You can't have a book that has... and that is what happened below. They would... some of the exhibits there would be a vivid description of a rape in three pages out of 700 pages, and that doesn't make it fall within the statute.
John Paul Stevens: I am not going to ask you to debate it with me. I am just trying to ask your understanding.
Richard Bain Smith: I understand, and--
John Paul Stevens: If Chapter... subparagraph 2 were not in Section 391, and we were merely dealing with section 390, which I gather is the definition that existed before the recent amendment, would my example of a ten-chapter book containing one sexually explicit chapter that would follow the definition, would that book, work as a whole in your view be harmful to juveniles within that section?
Richard Bain Smith: --No, and perhaps the easiest... or the reason for it is that under Virginia law this is a criminal statute, and has to be strictly construed against the Commonwealth. In any type of disagreement like that, the state loses.
John Paul Stevens: Thank you. Mr. Smith, suppose a bookseller does not segregate books. Would he be able to comply with the Virginia statute by simply saying, whenever I see a juvenile, a person who looks to me like a juvenile, browsing in a book which is a book that I ought to know falls within this statute, I stop that juvenile and ask him to leave the store. That is my store policy. Would that be enough to comply with the statute?
Richard Bain Smith: Yes, sir. As a matter of fact, that exact example took place in this case. One of the bookstore owners said that she had some material that she thought might be adult material, and she said, "But I keep it on a shelf next to my counter, where I keep an eye on it so juveniles can't get to it. " Of course that complies, because the state has to prove that she syinterly... we have to prove that she knowingly violated the statute.
Antonin Scalia: Well, I am not talking so much about knowingly as I am talking about the language "display for a commercial purpose in a manner whereby juveniles may examine and peruse. " "May"--
Richard Bain Smith: Because I think--
Antonin Scalia: --"May" means it is possible for them to do so or they are permitted to do so.
Richard Bain Smith: --This Court had a case which I have cited in my brief called the Foreign Products Case, and that case said that when used in a statute as this "May" is used, it can... mean might or it can mean reasonable certainty or it can mean actual tendency under Virginia law, since it has to be strictly construed against the Commonwealth, it has to be what you have suggested, and it would qualify.
William H. Rehnquist: Thank you, Mr. Smith. The case is submitted.