Barnes & Noble agrees to comply with Tennessee ‘harmful to minors’ display law

Monday, May 18, 1998

In a surprising development announced earlier today in a Franklin, Tenn., courtroom, District Attorney General Joe Baugh informed the judge that his office had agreed to retire the prosecution of Barnes & Noble booksellers in exchange for the bookstore agreeing to comply with a state law prohibiting the display of material “harmful to minors.”

Last November, a Williamson County, Tenn., jury indicted the bookstore under the harmful-to-minors law for selling The Last Days of Summer and Radiant Identities by fine arts photographer Jock Sturges and The Age of Innocence by David Hamilton in its photography section. All three books contain numerous photographs of nude children.

The harmful-to-minors display law, T.C.A. § 39-17-914 requires booksellers to place the material in “binder racks,” place the material five-and-one-half feet above the ground and take “reasonable steps” to make sure minors are not “perusing” the material.

Under the agreement announced in court, Barnes & Nobles agreed to comply with the law by either keeping the material five and one half feet off the ground or keeping the material behind the counter. If the bookstore complies with the law for one year, Baugh agreed to permanently dismiss the case.

Barnes & Noble attorneys Richard Lodge and David Raybin announced to a group of reporters outside the courtroom that “Barnes & Nobles is pleased the district attorney has resolved the case and agreed to drop the prosecution.”

Lodge said that “Barnes & Noble, as a responsible corporate citizen, fully intends to comply with the laws of the state of Tennessee and meet its obligations to the community.”

However, the president of the ACLU of Tennessee was not quite so pleased with the development. Hedy Weinberg said: “The corporate interests were served, but the First Amendment interests were not served. In an odd sort of way, the district attorney was able to secure an admission of some kind of guilt.”

Weinberg said Barnes & Noble's decision to quit fighting the prosecution was “disturbing” and “raises serious First Amendment concerns.”

She surmised that the nation's largest bookseller opted not to further contest the charges in Tennessee, because it faces more serious charges in Alabama. Officials there, including the state attorney general, brought charges against the bookstore in February under state obscenity and child pornography laws. “The developments in Alabama sent everyone scurrying,” Weinberg said.

A local anti-pornography group had wanted Baugh to charge the bookstore under a state child pornography law. However, Baugh instead sought an indictment under the lesser charge of displaying material “harmful to minors.”

Chris Finan, President of the American Booksellers Foundation for Free Expression, said: “The important thing that comes out of this case in Tennessee is that the prosecutor has basically said these books do not constitute child pornography and that a bookseller has a right to sell these books as long as they are not 'displayed.'

“In court proceedings all across the country, with the exception of Alabama, grand juries and others are coming to the conclusion that these books by Jock Sturges and others are simply not child pornography, but are works with legitimate artistic importance,” he said.