UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
968 F.2d 684
July 1, 1992, Filed
FAGG, Circuit Judge.
This case presents a pre-enforcement challenge to the constitutionality of a Missouri statute that restricts the rental or sale of videocassettes or other video reproduction devices (collectively videos) depicting any type of violence in a defined way. The Statute prohibits the rental or sale of these videos to minors and requires video dealers to display or maintain the videos in a separate area within their stores. The statute's challengers represent three groups: associations whose members rent or sell videos to the public; the Motion Picture Association of America, Inc. (MPAA), whose members include producers and distributors of films that are eventually released on videos; and owners and operators of two Missouri video retail stores, on behalf of a class of all retailers and distributors of videos in Missouri (collectively appellees). The appellants are the Missouri Attorney General, a county prosecuting attorney, and all others empowered to enforce the statute (collectively Missouri). The district court declared the statute unconstitutional on its face and permanently enjoined the statute's enforcement. The challenged part of the statute provides:
1. Video cassettes or other video reproduction devices, or the jackets, cases or coverings of Such video reproduction devices shall be displayed or maintained in a separate area . . . if:Under Missouri law, an infraction is not a crime, but a person convicted of an infraction may be fined $ 200.
(1) Taken as a whole and applying contemporary community standards, the average person would find that it has a tendency to cater or appeal to morbid interests in violence for persons under the age of seventeen, and
(2) It depicts violence in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for persons under the age of seventeen; and
(3) Taken as a whole, it lacks serious literary, artistic, political, or scientific value for persons under the age of seventeen.
2. Any video cassettes or other video reproduction devices meeting the description in subsection I of this section shall not be rented or sold to a person under the age of seventeen years.
3. Any violation of the provisions of subsection I or 2 of this section shall be punishable as an infraction . . . .
At the outset, we observe it is unclear what type of videos the statute targets. The statute contains no definition of "violence" specifying the violent acts to which the statute's three-part test applies. No explanation of purpose accompanies the statute. There is no legislative history. In an article written after the violent video bill's passage, the sponsoring state representative wrote that the bill was designed to cover movies containing "'graphic sexual torture, bondage, rape, cannibalism, human brutality and mutilation."'
In its brief, Missouri inconsistently identifies the targeted videos. In sharp contrast to the statute's nonspecific language, Missouri first asserts the statute targets "slasher" videos, which Missouri describes as "blood and gore movies" displaying "the most bestial and graphic acts of violence imaginable" Such as "excessive scenes of murder, rape, sadomasochistic sex, autopsies, mutilations, Satanism, and assorted perversions." Missouri then ignore broadly asserts the statute is aimed at "graphically violent videos." Missouri later asserts the statute targets "all kinds of violence that exhibit [the statutory] characteristics."
First, we agree with the district court that the statute is not narrowly tailored to promote a compelling state interest. At oral argument, Missouri conceded the First Amendment "generally" protects videos depicting violent conduct. In its brief, however, Missouri contends the videos are "obscene" for children and, thus, the statute need only be rationally related to the objective of safeguarding minors from harm. See Ginsberg v. New York (applying rational relation test to statute prohibiting sale to minors of "sex material" deemed obscene for minors).
We agree with Missouri that the First Amendment does not protect obscenity. We also agree with Missouri that expression which is not obscene for adults may be obscene for children if the expression bears certain indicia of obscenity when examined from a minor's point of view. Obscenity, however, encompasses only expression that "depicts or describes sexual conduct." Material that contains violence but not depictions or descriptions of sexual conduct cannot be obscene.
Missouri, however, asserts the statute is a constitutional exercise of its power to protect children. We disagree. Because states have an interest in the well-being of their youth, the states' power to regulate communicative materials available to children is somewhat broader than their power to regulate materials available to adults. "Nevertheless, minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."
Missouri concedes the statute regulates the dissemination of speech based on its content. Thus, Missouri must justify its content-based restriction on protected speech by showing the statute is narrowly drawn to advance an articulated, compelling governmental interest. When serving its "compelling interest in protecting the physical and psychological well-being of minors," a state must use "narrowly drawn regulations designed to serve [that] interest without unnecessarily interfering with First Amendment freedoms."
Even assuming the statute aims to protect minors from the harmful effects of viewing slasher videos as Missouri contends, we conclude the statute is not narrowly drawn to achieve its end without unnecessarily infringing on freedom of expression. The statute does not refer to slasher videos or define the term "slasher." As drawn the statute covers all types of violence. Missouri assures us the statute does not apply to animated violence in many cartoon shows, simulated violence in western and war movies, real violence in the boxing ring, or psychological violence in suspense stories or "thrillers." The statute, however, provides no support for Missouri's assurance. A more precise law limited to slasher films and specifically defining key terms would be less burdensome on protected expression. In our view, "'every application of the statute creates an impermissible risk of suppression of ideas."' Missouri's statute thus violates the First Amendment on its face.
Second, we agree with the district court that the statute is unconstitutionally vague. To survive a vagueness challenge, a statute Must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited" and "provide explicit standards for those who apply [the statute]." A stringent vagueness test applies to a law that interferes with the right of free speech.
Missouri asserts the statute is not unconstitutionally vague because the statute adapts Miller's obscenity test. Missouri generally Substituted the word "violence" for the term "sexual conduct." Miller, however, requires a specific definition of "sexual conduct" in either the statute or as construed by state courts. Here, the statute fails to specifically define "violence." Although Missouri's courts have not had an opportunity to construe the statute, we have no reason to assume they can decisively narrow the statute given the absence of any legislative history or statement Of purpose. Like the district court, we conclude "people of common intelligence, whether prosecutors or video dealers, must guess at the meaning of the statute. " Because the statute "is impermissibly vague in all of its applications," the statute is facially unconstitutional on due process grounds.
Third, we agree with the district court that the statute unconstitutionally imposes strict liability. Statutes that impose criminal responsibility for dissemination of unprotected speech must contain a knowledge requirement. Missouri contends the statute's lack of a knowledge requirement is constitutional because violation of the statute is not a crime. We disagree. In Our view, the statute is quasi-criminal in nature. The statute is contained in the "Crimes and Punishment" chapter of the Missouri code, and each violation carries a fine of up to $ 200.
In any event, we believe any statute that chills the exercise of First Amendment rights Must contain a knowledge element. See Sinith v. California, 361 U.S. 147 (1959) (holding statute imposing strict liability for possession of obscene book in bookstore is unconstitutional). By penalizing video dealers regardless of their knowledge of a video's contents, the statute presents a hazard of self-censorship. To comply with the statute, all video dealers would have to view the contents of every video in -their stores. Dealers would limit videos available to the public to videos the dealers have viewed. This would impede rental and sale of all videos, including those that the statute does not purport to regulate and that the First Amendment fully protects. Because the statute's strict liability feature would make video dealers more reluctant to exercise their freedom of speech and ultimately restrict the public's access to constitutionally protected videos, the statute violates the First Amendment.
We realize many states are attempting to restrict dissemination of violent videos to children. In concluding Missouri's statute is invalid, we do not belittle the State's interest in the well-being of minors. "We hold only that the present [statute] does not satisfy the rigorous constitutional standards that apply when government attempts to regulate expression."
We affirm the district court.
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