dissenting.
I respectfully dissent.
If the first amendment means anything, it should be clear that the Minneapolis ordinance is unconstitutional on its face. In dissenting, I am not unmindful of a government’s public concern for the well-being of its youth. Before we condone paternalistic censorship by government in a free society, however, this court, as has every. other court addressing similar laws, must be certain that such legislation (1) respects the constitutional rights of both adults and minors by not unduly encroaching on the basic freedoms we enjoy through free speech and free press and (2) is reasonably restricted to the evil with which it is said to deal. The Minneapolis ordinance falls far short of compliance with either of these concerns. As the majority’s opinion makes abundantly clear, no ordinance or law written in such sweeping terms has, until today, gained constitutional approval.1 The only two cases upholding laws similarly regulating the display of sexually explicit material to youths are easily distinguished *1400and help point out the constitutional deficiencies of the Minneapolis ordinance.2
I.
The Minneapolis ordinance requires booksellers and other institutional sellers who display or sell books or magazines to place an opaque cover on any material bearing a cover that “standing alone” is harmful to minors. In condoning the opaque cover provision, the majority assumes that this provision in no” way affects the access of minors to material that is protected as to them. Because the Minneapolis ordinance only requires opaque covers on covers that “standing alone” are obscene as to minors, the majority asserts, it does not affect the first amendment rights of minors. This analysis is not only illogical, but contrary to Supreme Court precedent.
The Supreme Court has expressly held that an entire work must be evaluated as a whole in determining whether it is obscene. In declaring facially unconstitutional an ordinance that made it a punishable offense for a drive-in movie theater to exhibit a film containing nudity when the screen is visible from a public street or place, the Supreme Court stated that: (1973); Kois v. Wisconsin, 408 U.S. 229 [92 S.Ct. 2245, 33 L.Ed.2d 312] (1972). In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws.
Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. See Miller v. California, 413 U.S. 15, 24 [93 S.Ct. 2607, 2614, 37 L.Ed.2d 419]
THE CHIEF JUSTICE’S dissent, in response to this point, states that “[u]nlike persons reading books, passersby cannot consider fragments of drive-in movies as a part of the ‘whole work’ for the simple reason that they see but do not hear the performance____” At issue here, however, is not the viewing rights of unwilling viewers but rather the rights of those who operate drive-in theaters and the public that attends these establishments. The effect of the Jacksonville ordinance is to increase the cost of showing films that contain nudity. In certain circumstances theaters will avoid showing these movies rather than incur the additional costs. As a result persons who want to see such films at drive-ins will be unable to do so. It is in this regard that a motion picture must be considered as a whole, and not as isolated fragments or scenes of nudity.
Erznoznik v. City of Jacksonville, 422 U.S. 205, 211 n. 7, 95 S.Ct. 2268, 2273 n.7, 45 L.Ed.2d 125 (1975) (some citations omitted); see also Kois v. Wisconsin, 408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972).3 Lower federal courts and *1401state courts have also emphasized that the work must be assessed as a whole in determining whether it is obscene, not only in the context of the sale of books and magazines,4 but also in the context of regulations on the display of books and magazines.5
The majority argues that Erznoznik and other cases requiring that the work be viewed as a whole involved the suppression of speech rather than the display of speech. The Supreme Court clearly rejected this distinction in stating: “Such a deterrent, although it might not result in total suppression of these movies, is a restraint on free expression.” Erznoznik, 422 U.S. at 211-12 n. 8, 955 S.Ct. at 2274 n. 8 (citing Speiser v. Randall, 357 U.S. 513, 518-19, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958)). Similarily, although the Minneapolis ordinance does not ban the sale of material with a cover obscene as to minors, as in Erznoznik, it regulates the manner in which such material may be displayed. It may be, as the majority asserts, that many of the cases striking statutes that do not require consideration of the work as whole involve statutes regulating the distribution rather than the display of books and magazines. The distinction between suppression and regulation of display is without constitutional significance, however, in light of Erznoznik, which in declaring unconstitutional an ordinance regulating the display of movies containing nudity, expressly stated that the entire work must be considered as a whole.
In further support of its contention that the opaque cover provision does not run afoul of the “as a whole” requirement, the majority quotes with approval the district court’s statement that “to a child who may never acquire and read or view the entire work, the cover of the book or magazine is the work ‘as a whole.’ ” 602 F.Supp. at 1369. I respectfully submit that this is a total non sequitur. If the majority means by this statement that a child is not allowed to purchase a book with an obscene cover, the majority misconstrues the opaque cover requirement. This requirement pertains only to books or magazines that are not as a whole obscene as to minors and which minors may therefore purchase.6 Thus, the ordinance leads to the absurdity that, although the child is precluded from viewing the cover on display, he or she may peruse and purchase the entire book or magazine.
Another possible interpretation of the majority’s rationale is that the cover constitutes the whole for any minor who sees the cover but does not read the remainder. As previously indicated, this proposition was expressly rejected by the Supreme Court in Erznoznik v. City of Jacksonville, 422 U.S. at 211 n. 7, 95 S.Ct. at 2273 n. 7.
*1402The ordinance does provide “booksellers” 7 with an alternative to the opaque cover provision. If a bookseller physically separates the material so that minors cannot be present or cannot view the material, posts a sign reading “Adults only — you must be 18 to enter,” and enforces these restrictions, a bookseller may avoid the opaque cover requirement. This alternative, seemingly approved by the majority, is also a patently unconstitutional infringement on the rights of both minors and adults. To comply with this alternative, a bookseller must place books or magazines that are obscene as to neither adults nor minors, but that have covers deemed obscene as to minors, in “adults only” areas. Such a practice effectively prevents minors from purchasing materials they are constitutionally entitled to purchase. Moreover, because of the stigma attached to “adults only” stores, many adults would forgo exercising their first amendment rights to purchase nonobscene literature if such material were only available in adult bookstores. This “adults only” alternative would likewise impinge on the rights of booksellers. If the bookseller decides to play it safe and establish an “adults only” section, the storeowner would lose the patronage of minors as well as many adults wishing to avoid the stigma attached to “adults only” book stores. If the bookseller chooses instead to sell only nonobscene materials in order to avoid limiting entrance to large numbers of the buying public (all minors and many adults), the bookseller would have to remove from the shelves any book or magazine bearing a cover that might possibly be deemed harmful to minors even though the content of the book or magazine was perfectly proper for all to read. In today’s society, this could very easily lead to the suppression of many literary works, including classics and other best sellers. As Justice Frankfurter stated long ago, “Surely this is to burn the house to roast the pig.” Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). It is difficult for me to believe that a free society would sanction such a curtailment of its reading habits.
In short, both the opaque cover requirement and its alternative, an adults only section, infringe on the first amendment rights of minors and adults because they regulate the display of material that minors and adults are entitled to purchase. In this sense, the opaque cover provision is even less justifiable than the sealed wrapper requirement because it restricts access to speech that is not obscene as to adults or minors. As the Supreme Court stated in Erznoznik:
Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.
Erznoznik, 422 U.S. at 213-14, 95 S.Ct. at 2275 (footnote omitted).
II.
Conceding that the sealed wrapper requirement “limits to some extent” the access of adults to material protected as to them, the majority seeks to justify that portion of the ordinance as a valid time, place, or manner restriction. The majority apparently did not consider whether the opaque cover requirement was valid as a time, place, or manner restriction because it evidently concluded that the opaque cover requirement did not implicate the first amendment rights of minors or adults. Because I would conclude that the opaque cover requirement infringes the access of adults and minors to material constitutionally protected as to them, I would also require that the opaque cover requirement be justified as a time, place, or manner restriction before concluding that the Minneapolis ordinance is not unconstitutional *1403on its face. Based on the applicable precedent, I would conclude that neither the sealed wrapper requirement nor the opaque cover requirement is a valid restriction on the time, place, or manner of speech. I would therefore hold that the Minneapolis ordinance is on its face unconstitutionally overbroad.
As the majority notes, reasonable time, place, or manner restrictions of speech otherwise protected under the first amendment are permissible to further significant government interests if they are narrowly drawn. Young v. American Mini Theaters, Inc., 427 U.S. 50, 63, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976); Erznoznik,' 422 U.S. at 209, 95 S.Ct. at 2272. As the Supreme Court noted in Erznoznik, however,
A State or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power.
Erznoznik, 422 U.S. at 209, 95 S.Ct. at 2272 (emphasis added) (citations omitted). The Minneapolis ordinance involved here clearly is not content neutral because its application depends on the message of the material. The majority concedes as much. Nevertheless, the majority argues, the Supreme Court has upheld content-based time, place, or manner restrictions, citing New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); and Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).
None of these cases, nor any other Supreme Court decisions, provide support for the ordinance the majority upholds today. In regard to the opaque cover provision of the Minneapolis ordinance, Ferber and Young are clearly distinguishable. In neither of those cases was the “legitimate interest” prof erred in support of the legislation an attempt to protect a certain group from the message conveyed by the speech.8 In Ferber, for example, the legislation was justified as an attempt to protect children from being the subject of pornography, not to protect children from the message of such material. Similarly, the ordinance in Young was a zoning ordinance designed to preserve the integrity of neighborhoods by preventing a concentration of adult movie theaters. In contrast, the opaque cover provision restricts access to materials because of the harmful affects a glimpse of the message of the material may have on minors, even though minors are permitted by law to purchase such material and view the cover after purchase. I would therefore hold that preventing access by juveniles to material that is not obscene as to them is not a compelling government interest and that the opaque cover provision thus is not a valid restriction on the time, place, or manner of speech.
I would agree that the City of Minneapolis demonstrates a significant government interest in preventing access by minors to material that, taken as a whole, would be obscene as to them. This of course is the alleged purpose of the sealed wrapper requirement. In promoting the morals of its youths by restricting their access to certain communications, however, the government may not simultaneously create barriers that substantially restrict adult access to material they are constitutionally entitled to obtain. Although the intended effect of the sealed wrapper requirement is to prevent examination and perusal by minors of material obscene as to them, the unavoidable collateral effect of this provision is to severely limit the ability of adults to examine these protected materials. In this respect, the sealed wrapper *1404provision is far more restrictive than necessary to achieve its eoncededly legitimate purpose.
In Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), the Supreme Court struck down a Michigan law making it unlawful for anyone to make available for the general reading public a book found to have a potentially deleterious influence on youth. Id. at 382-83, 77 S.Ct. at 525-26. The Court stated:
We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indis-pensble conditions for the maintenance and progress of a free society
Id. at 383-84, 77 S.Ct. at 526. The majority distinguishes Butler because the statute involved in that case resulted in the total suppression of material covered by the statute, whereas the Minneapolis ordinance does not totally deny adults access to material that must be displayed and sold in a sealed wrapper. This distinction is superficial on its face because the practical effect of the sealed wrapper provision is identical to that in Butler, namely, to restrict adults to that which is suitable for children.
Faced with the restrictions in the Minneapolis ordinance, a book store would be forced to discontinue carrying the restricted materials, ban minors from its store altogether, move a significant portion of its inventory to an “adults only” section, or place the material in sealed wrappers. These alternatives would either preclude adults from browsing through material pri- or to purchase or would place a heavy burden on store owners to restructure their stores and require adults to go into stigmatized “adults only” areas to examine the materials. The ordinance overlooks the fact that the display of magazines and books plays a vital role in the bookseller’s ability to advertise and sell its merchandise. Most books and magazines are purchased only after a potential reader has had an opportunity to peruse the book or magazine’s contents. Today, sexually explicit pictures and photographs are common place in many bookstores that deal in non-pornographic literature. This is particularly true in the large volume of sales of paperback books. There should be little question that requiring sealed wrappers on sexually explicit literature would have a tremendous effect on the ability of booksellers to advertize their merchandise. Furthermore, the freedom of adults to scan books and magazines before buying would be severely limited if such works were contained in sealed covers. Surely, many adults who would be required to unseal this literature in public areas in order to peruse the book or magazine would be embarassed to do so. Because the sealed wrapper provision is more restrictive than necessary to protect minors from material that is admittedly unfit for them, I would hold that the Minneapolis ordinance is unconstitutionally overbroad.
III.
Aside from the undeniable overbreadth of the Minneapolis ordinance, one additional factor compels me to conclude that the ordinance is unconstitutional. Originally, the ordinance contained section 7(a), which exempted from criminal prosecution “recognized and established schools, religious institutions, museums, medical clinics and physicians, hospitals, public libraries, governmental agencies or quasi governmental organizations.” Minneapolis Ordinance § 385.131(7)(a). After holding that this exemption violates the equal protection clause,9 the district court determined that the exemption provision was severable from the remainder of the ordinance. 602 F.Supp. at 1375. The district court concluded that the exemption provision was intended to permit exempt organizations to display sexually explicit materials in a noncommer*1405cial context, thereby furthering parental control over their children’s sex education, and that this purpose would not be defeated by severing the constitutionally unsound exemption. As authority for severing the exemption, the district court relied on City of Duluth v. Sarette, 283 N.W.2d 533 (Minn.1979), in which the Minnesota Supreme Court severed a similarly unconstitutional exemption provision from the City of Duluth obscenity ordinance. The majority has adopted this same rationale on the severability issue. I must once again disagree. Sarette is not only distinguishable, but it serves as direct authority for holding that the entire Minneapolis ordinance under consideration here must be declared unconstitutional.
The ordinance involved in Sarette made punishable the sale of material deemed “obscene” as defined by the United States Supreme court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The Minnesota Supreme Court determined that because only material lacking “serious literary, artistic, political, or scientific value” was obscene under Miller, the exemption provision was superfluous; it concluded that material sold by these organizations would presumably possess “literary, artistic, political, or scientific value” and would thus not be obscene under Miller. The court expressly noted that by severing the exemption provision from the Duluth ordinance, “we do not alter the intended effect of the ordinance, because protection of legitimate uses of pornographic materials is afforded by the main provisions of the ordinance.” Sarette, 283 N.W.2d at 537. The Minneapolis ordinance, however, proscribes a far broader range of conduct than the Duluth ordinance. Severance of the exemption provision here thus has the effect of legislating criminal liability on a class of persons the Minneapolis city council deliberately sought to exempt.
The intent of the Minneapolis city council in exempting educational organizations is clearly expressed in a provision of the ordinance that remains a part of the ordinance even after severance of the exemption.10 Both the district court and the majority assumed that these organizations would remain exempt after severance because the ordinance applies only to the “commercial” sale or display of material. Close examination of the Minneapolis ordinance, however, reveals that this is not the case. If, for example, an educational organization displays sex education material in order to promote the sale of such material, the ordinance would apply to that organization if the material or its cover is deemed “harmful to minors.” Because the opaque cover provision allows consideration of the cover “standing alone,” the provision does not allow consideration of the contents of the material taken as a whole. It is the contents of the material, however, that would normally be expected to provide the “literary, artistic, political, or scientific value” that the court in Sarette determined would result in exempting these educational organizations even without an express exemption. Thus, unlike Sarette, severance of section 7(a) of the Minneapolis ordinance would clearly alter the intended effect of the ordinance, because the provisions of the ordinance might impose criminal liability on an entity the Minneapolis city council intended to exempt from prosecution. In such situations, courts have not hesitated to declare entire obscenity statutes unconstitutional rather than merely severing constitutionally unsound exemption provisions. See Wheeler v. State, 281 Md. 593, 380 *1406A.2d 1052, 1061 (1977); Tattered Cover, Inc. v. Tooley, 696 P.2d 780, 786 (Colo.1985) (en banc). I would similarly hold that the district court improperly altered the intended effect of the ordinance by severing the exemption provision and that a finding that the exemption is unconstitutional requires that the entire Minneapolis ordinance be declared unconstitutional.
IV.
Writing for this court in 1968, in reversing criminal convictions for mailing and transporting obscene literature, I observed:
[W]ithin the juridical balance is the basic concern over governmental interference into free channels of expression. It is far better there be a tight rein on authoritarian suppression, notwithstanding a conflict with some individuals’ tastes or customary limits of candor, than that we live in a stifled community of self-censorship where men must feel apprehensive over expression of an unpopular idea or theme. Still within our human possession is the free will to make an independent choice of values and to teach our children to do the same. Paternalistic censorship by government must continue to limit that choice only in the most extreme of circumstances. Thus we view the general reluctance of the law to go further in this area.
Luros v. United States, 389 F.2d 200, 206 (8th Cir.1968).
I adhere to that statement as being appropriate here.
APPENDIX
Title 15, section 385.131 of the Minneapolis Code of Ordinances provides as follows:
Distribution of Materials Harmful to Minors
(1) In enacting this section, the city council declares its purposes and intent to be as follows:
There exists an urgent need to prevent commercial exposure of minors to sexually provocative written, photographic, printed, sound, or published materials as these are hereafter defined and which are hereby declared to be harmful to minors.
(2) It is in the best interest of the health, welfare, and safety of the citizens of this city and state, and especially of minors within the city and state, that commercial dissemination of such sexually provocative written, photographic, printed, sound, or published materials deemed harmful to minors be restricted to persons over the age of 17 years; or if available to minors under the age of 18 years, that the availability of such materials be restricted to sources within established and recognized schools, religious institutions, museums, medical clinics and physicians, hospitals, public libraries, the minor’s home, or government sponsored organizations.
(3) As used in this section, the terms defined in this subdivision have the meanings given them:
(a) “Minor” means any person under the age of 18 years;
(b) “Nudity” means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state;
(c) “Sexual Conduct” includes any of the following depicted sexual conduct:
(i) Any act of sexual intercourse, actual or simulated, including genital-genital, anti-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal.
(ii) Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing costume or the condition of being fettered, bound, or otherwise physically restricted on the part of one so clothed.
(iii) Masturbation or lewd exhibitions of the genitals including any explicit, *1407close-up representation of a human genital organ.
(iv) Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
(v) An act of sexual assault where physical violence or drugs are employed to overcome the will of or achieve the consent of a person to an act of sexual conduct and the effects or results of the violence or drugs are shown.
(d) “Sexual Excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal;
(e) “Harmful to Minors” means that quality of any description or representation, in whatever form, of nudity, sexual conduct, or sexual excitement, when it:
(1) predominantly appeals to the prurient, shameful, or morbid interest of minors in sex; and
(2) is patently offensive to contemporary standards in the adult community as a whole with respect to what is suitable sexual material for minors; and
(3) taken as a whole, lacks serious literary, artistic, political or scientific value.
(f) “Knowingly” means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or both:
(1) the character and content of any material which is reasonably susceptible of examination by the defendant; and
(2) the age of the minor, provided however that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.
(4) It is unlawful for any person knowingly to sell or loan for monetary consideration to a minor:
(a) Any picture, photograph, drawing, sculpture, motion picture film, video tape, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sexual excitement and which is harmful to minors.
(b) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in clause (a), or which contains explicit and detailed verbal descriptions or narrative accounts of nudity, sexual excitement, or sexual conduct and which taken as a whole is harmful to minors.
(5) It is unlawful for any person knowingly to exhibit for a monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is exhibited, a motion picture show or other presentation which, in whole or in part, depicts nudity, sexual conduct, sexual excitement and which is harmful to minors.
(6) It is unlawful for any person commercially and knowingly to exhibit, display, sell, offer to sell, give away, circulate, distribute, or attempt to distribute any material which is harmful to minors in its content in any place where minors are or may be present or allowed to be present and where minors are able to view such material unless each item of such material is at all times kept in a sealed wrapper.
(a) It is also unlawful for any person commercially and knowingly to exhibit, display, sell, offer to sell, give away, circulate, distribute, or attempt to distribute any material whose cover, covers, or packaging, standing alone, is harmful to minors, in any place where minors are or may be present or allowed to be present and where minors are able to view such material unless each item of *1408such materials is blocked from view by an opaque cover. The requirement of an opaque cover shall be deemed satisfied concerning such material if those portions of the cover, covers, or packaging containing such material harmful to minors are blocked from view by an opaque cover.
(b) The provisions of this subdivision shall not apply to distribution or attempt to distribute the exhibition, display, sale, offer of sale, circulation, giving away of material harmful to minors where such material is sold, exhibited, displayed, offered for sale, given away, circulated, distributed, or attempted to be distributed under circumstances where minors are not present, not allowed to be present, or are not able to view such material or the cover, covers, or packaging of such material. Any business may comply with the requirements of this clause by physically segregating such material in a manner so as to physically prohibit the access to and view of the material by minors, by prominently posting at the entrance(s) to such restricted area, “Adults Only — you must be 18 to enter,” and by enforcing said restrictions.
(7) The following are exempt from criminal or other action hereunder:
(a) Recognized and established schools, religious institutions, museums, medical clinics and physicians, hospitals, public libraries, governmental agencies or quasi governmental sponsored organizations, and persons acting in their capacity as employees or agents of such organization. For the purpose of this section “recognized and established” shall mean an organization or agency having a full time faculty and diversified curriculum in the case of a school; a religious institution affiliated with a national or regional denomination; a licensed physician or psychiatrist or clinic of licensed physicians or psychiatrists; and in all other exempt organizations shall refer only to income tax exempted organizations which are supported in whole or in part by tax funds or which receive at least one third of their support from publicly donated funds.
(b) Individuals in a parental relationship with the minor.*
. For cases in which courts have declared unconstitutional similarly broad statutes regulating the display of sexually explicit material, see, e.g., American Booksellers Association v. Strobel, 617 F.Supp. 699 (E.D.Va.1985); Rushia v. Town of Ashbumham, 582 F.Supp. 900 (D.Mass.1983); American Booksellers Association, Inc. v. McAu-liffe, 533 F.Supp. 50 (N.D.Ga.1981); American Booksellers Association v. Superior Court, 129 Cal.App.3d 197, 181 Cal.Rptr. 33 (1982); Tattered Cover, Inc. v. Tooley, 696 P.2d 780 (Colo. 1985); Dover News, Inc. v. City of Dover, 117 N.H. 1066, 381 A.2d 752 (1977); Calderon v. City of Buffalo, 61 A.D.2d 323, 402 N.Y.S.2d 685 (1978).
. The majority cites M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.1983), and American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984), as examples of legislation similar to the Minneapolis ordinance that have been held constitutional. These ordinances, however, are far less intrusive on the rights of adults and minors than the Minneapolis ordinance. Unlike the opaque cover provision of the Minneapolis ordinance, the ordinances involved in Casado and Rendell only regulate the display of material that, when taken as a whole, is obscene as to minors. The Casado ordinance requires that the bottom two-thirds of material deemed harmful to minors be covered by blinder racks; the Rendell ordinance prohibits the "display” of material deemed harmful to minors, which the court noted would not include the mere shelving or stocking of such material, but only the ostentatious showing or presentation of such material in a manner that would direct attention to it. Neither case prpvides authority for the sweeping ordinance the majority upholds today.
. The majority argues that Erznoznik is distinguishable because the Minneapolis ordinance is limited only to those materials that are obscene as to minors. I cannot agree.. As with the ordinance in Erznoznik, the opaque cover portion of the Minneapolis ordinance regulates material that is entitled to first amendment protection even as to minors if a portion of that material standing alone, e.g., the cover, is obscene as to minors. In concluding that the work need not be considered as a whole because the material is obscene as to minors, the majority presumes the truth of the very proposition it is attempting to prove. In other words, in concluding that the cover may be deemed "the whole work” and thus, viewed in isolation, the majority assumes that the cover may be *1401viewed in isolation and that the cover is therefore obscene and not protected as to minors. Clearly, there would have been no need for the Erznoznik court to have discussed the "as a whole” requirement had the Court not contemplated a situation in which at least one scene in the movie was "obscene” as to minors but the movie as a whole was not.
. See, e.g., Playboy Publications, Inc. v. McAuliffe, 610 F.2d 1353, 1354, 1369 (5th Cir.1980); State v. Walden Book Co., 386 So.2d 342, 344-45 (La.1980); Leech v. American Booksellers Association, Inc., 582 S.W.2d 738, 749 (Tenn.1979); Shealy v. State, 675 S.W.2d 215, 216 (Tex.Crim.App.1984) (en banc); cf. United States v. Miscellaneous Pornographic Magazines, 526 F.Supp. 460, 466 (N.D.Ill.1981).
. See, e.g., Rushia v. Town of Ashburnham, 582 F.Supp. 900, 903 (D.Mass.1983); American Booksellers Association, Inc. v. McAuliffe, 533 F.Supp. 50, 57 n. 10 (N.D.Ga.1981); Dover News, Inc. v. City of Dover, 117 N.H. 1066, 1069, 381 A.2d 752, 755 (1977); see also American Booksellers Association, Inc. v. Superior Court, 129 Cal. App.3d 197, 205, 181 Cal.Rptr. 33, 38 (1982) (statute invalidated because, among other things, it restricted the display of material the contents or cover of which was sexually explicit); Calderon v. City of Buffalo, 61 A.D.2d 323, 330, 402 N.Y.S.2d 685, 689 (1978) (same).
. If the book or magazine “taken as whole” is in itself obscene as to minors then the ordinance requires that the material be displayed and sold in a sealed wrapper. I discuss this requirement in Part II, infra.
. It should be clear that in modern merchandizing of paperback books, which include classics as well as books of modern romance, grocery stores, department stores, drug stores, and many other commercial establishments must also be considered “booksellers”.
. Pacifica can be distinguished from both the opaque cover provision and the sealed wrapper requirement because of the privacy interest implicated when a message is thrust upon unwilling listeners in the privacy of their homes. See Erznoznik, 422 U.S. at 209, 95 S.Ct. at 2272.
. The City has not appealed this ruling of the
. That provision provides:
(2) It is in the best interest of the health, welfare, and safety of the citizens of this city and state, and especially of minors within the city and state, that commercial dissemination of such sexually provocative written, photographic, printed, sound, or published materials deemed harmful to minors be restricted to persons over the age of 17 years; or if available to minors under the age of 18 years, that the availability of such materials be restricted to sources within established and recognized schools, religious institutions, museums, medical clinics and physicians, hospitals, public libraries, the minor’s home, or government sponsored organizations.
Minneapolis Ordinance § 385.131(2).
In June 1985, the Minneapolis City Council repealed subdivision seven (7) of the ordinance.