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Written by Michael W. Hail and Lynnette Noblitt, published on January 1, 2009 , last updated on February 18, 2024

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In Virginia v. American Booksellers Association, 484 U.S. 383 (1988), the Supreme Court certified two questions to the Virginia Supreme Court about the state’s “harmful to juveniles” statute regulating the commercial display of adult materials. The state had argued that the statute affected only a very narrow category of “borderline obscene” material, while the plaintiffs argued that the statute was overbroad, was unconstitutionally vague, and effectively criminalized the display of anything with adult content in violation of the First Amendment.


Virginia statute made it unlawful to display “harmful to juvenile” material

The Virginia statute made it unlawful for any person “to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse” materials “harmful to juveniles” as defined in the statute. The plaintiffs argued that the statute imposed excessive burdens on the First Amendment rights of adults because of the economic and regulatory burdens on booksellers for compliance; that the statute was overbroad in construction because it restricted mature juveniles’ access to works that were “harmful” only to young children; and that the statute was unconstitutionally vague because it did not distinguish among propriety standards for juveniles of different ages.


Court remanded case to resolve two questions

Justice William J. Brennan Jr. wrote the 8-1 majority opinion for the Court. Justice John Paul Stevens concurred in part and dissented in part.


This article was originally published in 2009. Lynnette Noblitt is a professor of government at Eastern Kentucky University. Michael W. Hail (1966-2020) was a professor of political science at Morehead State University.


The Court remanded the case — originally tried in federal court — to the Virginia Supreme Court to resolve two questions:


  • (1) Whether any of the books submitted as exhibits by the plaintiffs would fall within the statute’s definition of “harmful to juveniles” and how the law distinguished among different ages and levels of maturity;
  • and (2) whether a bookseller could avoid violating the statute by stopping a juvenile from reviewing materials “harmful to juveniles,” even if the materials were not segregated.

Brennan reasoned: “The unique factual and procedural setting of this case leads us to conclude that an authoritative construction of the Virginia statute by the Virginia Supreme Court would substantially aid our review of this constitutional holding, and might well determine the case entirely.”


Virginia Supreme Court upheld law

In Commonwealth v. American Booksellers Association (Va. 1988), the Virginia Supreme Court determined that none of the 16 books submitted as exhibits by the plaintiffs were harmful to juveniles. The state high court also determined that the law was not aimed at mere browsing by minors. Based on these state court rulings, in American Booksellers Association, Inc. v. Virginia (4th Cir. 1989) a federal appeals court upheld the Virginia law from a First Amendment challenge.


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