M.S. News Co. v. Casado
721 F. 2d 1281 (1983)
Rule of Law:
A municipal ordinance regulating the display of sexually oriented materials to minors is constitutional if it applies a modified Miller obscenity test, constitutes a reasonable time, place, and manner restriction (such as requiring blinder racks), and clearly defines proscribed conduct, even if it distinguishes between commercial and non-commercial establishments.
Facts:
- M.S. News Company operates as a wholesale and retail distributor of periodicals and publications in Wichita, Kansas.
- The City of Wichita enacted Ordinance Number 36-172, specifically section 5.68.156, which prohibits the promotion, sale, and display of sexually oriented materials deemed 'harmful to minors.'
- The ordinance defines 'harmful to minors' by adapting the legal standard for obscenity to specifically address what is inappropriate for children.
- To comply with the ordinance, commercial establishments are required to keep materials harmful to minors behind 'blinder racks' that conceal the lower two-thirds of the cover if minors are part of the invited general public.
- The ordinance includes an affirmative defense allowing the display or dissemination of such materials by recognized schools, museums, medical clinics, and libraries for bona fide educational or scientific purposes.
- Violation of the ordinance constitutes a misdemeanor offense punishable by fines and potential jail time.
- M.S. News Company sought to challenge the ordinance before it could be enforced, arguing it would restrict access to constitutionally protected materials.
Procedural Posture:
- M.S. News Company filed a complaint in the United States District Court seeking a declaratory judgment and injunctive relief against the enforcement of the ordinance.
- The District Court issued a temporary restraining order preventing the ordinance from taking effect.
- The defendants filed a motion to dismiss the complaint.
- M.S. News Company filed a reply brief contesting the motion to dismiss.
- The District Court held a hearing to consider both the request for a permanent injunction and the motion to dismiss.
- The District Court dissolved the temporary restraining order, denied the request for injunctive relief, and granted the defendants' motion to dismiss.
- M.S. News Company appealed the District Court's dismissal to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does a municipal ordinance that prohibits the display of sexually oriented materials harmful to minors, requires the use of blinder racks in commercial establishments, and exempts non-commercial institutions violate the First and Fourteenth Amendment rights of distributors or the Equal Protection Clause?
Opinions:
Majority - Circuit Judge Holloway
No, the ordinance does not violate the Constitution because it is a narrowly drawn regulation designed to protect minors while preserving adult access to protected speech. The court reasoned that the ordinance properly adapted the 'Miller' obscenity test to apply to minors, a practice supported by the Supreme Court's ruling in 'Ginsberg v. New York.' The requirement to use 'blinder racks' is a reasonable time, place, and manner restriction; it regulates the 'conduct' of display rather than the speech itself, and adults can still access the content by looking behind the blinders. Regarding the Equal Protection challenge, the court found a rational basis for distinguishing between commercial and non-commercial enterprises, noting that commercial entities have an economic incentive to distribute harmful material that schools and libraries do not. Finally, the court held that the state's two-tier court system—where a defendant is tried by a judge first but has an absolute right to a 'de novo' jury trial on appeal—satisfies the Sixth Amendment right to a jury trial.
Analysis:
This case is significant because it affirms the government's broad authority to regulate the display of sexually explicit materials in retail settings to protect children, provided the regulations do not totally ban adult access. It validates the 'blinder rack' compromise, establishing that partial concealment of magazine covers is a minor burden on speech compared to the state's interest in child welfare. Furthermore, the decision solidifies the legal distinction between commercial vendors and educational institutions, allowing municipalities to impose stricter obscenity regulations on businesses motivated by profit. The ruling also upholds the procedural efficiency of two-tier court systems for minor offenses, provided a jury trial remains ultimately accessible.
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