concurring and dissenting. With regard to the first question certified by the federal district court, I concur with the majority that the “narrowing” interpretation proposed by the State would completely nullify the statutory protections afforded by Ark Code Ann. § 5-68-501, et seq. (Supp. 2003). I write separately merely to clarify the wide-reaching effect such a construction would have on the protection of minors under the statute. The statute currently prohibits both the “display” of material harmful to minors as well as the “sale” of such material to minors. Ark. Code Ann. § 5-68-502(1)(A),(2)(A) (Supp. 2003). These provisions place notably different burdens on the booksellers and the First Amendment rights of adults to access these materials. Displays are permanently set for all customers who enter the store, regardless of age. Any display that restricts a minor’s access to material necessarily restricts to some degree an adult or more mature minor’s access to that material. Conversely, the sale of material happens on an individual level. Consequently, booksellers can tailor each sale to the maturity of the purchaser. Hence, when a 10-year-old attempts to purchase a book, the bookseller can evaluate at the time of purchase whether the book is appropriate for the child wishing to purchase it. If the book is not appropriate, the bookseller can refuse to sell the book to that child. The bookseller is, however, still free to shelve and sell that same book to an adult or a more mature minor, if appropriate. Thus, the potential constitutional defects of the “display” provision are not present in the “sale” provision because of the individualized nature of a sale.
Here, the State’s proposed “narrowing” interpretation would be applicable to both the “sale” and “display” provisions, as the definition of material that is “harmful to minors” applies equally to both provisions. If we apply a limiting interpretation to the definition of “harmful to minors” so as to avoid the constitutional defect of the “display” provision, such an interpretation will necessarily be applicable to the “sale” provision. Under the interpretation proposed by the State, the statute would only prohibit the sale of material that is harmful to older, more mature minors and not restrict at all the sale of material that is harmful to younger minors. Thus, the proposed “narrowing” interpretation would enable a 10-year old to both browse and purchase material that was harmful to him because such material was not harmful to a mature 17-year old. I cannot believe such a construction could ever have been anticipated or supported by the legislature in enacting this statute, and I agree with the majority that we must reject the State’s interpretation.
I depart from the majority, however, in answering the second question certified by the federal district court. In this question, the district court asks if books and magazines that have contents containing materials harmful to minors but which have no such material on their binders or covers are being “displayed” if they are simply shelved in the bookshelves. I would answer this question in the negative and interpret the “display” provision to only apply to material with harmful covers or binders. Such an interpretation is consistent with the plain language of the statute. Although “display” is not defined within the statute, Webster’s Dictionary defines “display” as, “to spread out before the view; to exhibit to the sight or mind; to exhibit conspicuously.” Webster’s Third New International Dictionary at 654 (2002). Thus, a book that is not harmful on its cover is not “displaying” the harmful-to-minors material. This interpretation makes sense, as a book that only contains sexually explicit content does not, by its mere presence on the shelves, cause harm to minors if the harmful content is not being “exposed to view”.1 A minor suffers no harm from viewing a benign cover of a book. Moreover, without an “inviting” cover, a minor is highly unlikely to randomly pick up and browse the contents of the book. Furthermore, minors will be unable to purchase material with harmful content, as the sale of such material is prohibited. Ark. Code Ann. § 5-68-502(2) (A) (Supp. 2003).
This interpretation is also consistent with the legislative history of the statute’s safe-harbor provision. The original safe-harbor clause provided that material was not “displayed” for purposes of the statute if it was “kept behind devices commonly known as ‘blinder racks’ so that the lower two-thirds (2/3) of the material is not exposed to view.” Ark. Code Ann. § 5-68-502(1)(B) (Supp. 1999). The plain language of this provision clearly indicates that the legislature was targeting only material with harmful covers and not targeting material with benign covers. In fact, the State and the booksellers are in agreement on this point. Blinder racks are only effective to shield minors from harmful covers and would be completely ineffective to shield minors from the harmful content within a book. Yet, under the majority’s interpretation, books with entirely benign covers must nevertheless be concealed so that the lower two-thirds of the cover is not exposed to view. Such a requirement does not in any way increase the protection afforded by the statute but only leads to an absurd result. City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003).
On the other hand, the protection of the blinder racks alone could be easily subverted by a mischievous minor lifting the material off the rack to view a harmful cover. Thus, in 2003, the legislature modified the safe-harbor provision by adding a requirement that the material also be physically segregated from minors. The safe-harbor provision now reads:
A person shall be deemed not to have displayed material harmful to minors if the lower two-thirds (2/3) of the material is not exposed to view and segregated in a manner that physically prohibits access to the material by minors.
Ark. Code Ann. § 5-68-502(1)(B) (Supp. 2003) (emphasis added). The amendment did not substantively change the requirement that the lower two-thirds of the material not be exposed to view; it merely deleted the specific reference to “blinder racks,” thereby enabling store owners to implement the provision in the manner that best suited their store. The most obvious reading of the 2003 amendment is that it was aimed at expanding the protection of the previously targeted material (material with harmful covers), and not that it was intending to target additional material. The legislature merely intended to prohibit minors from subverting the statute by lifting the material off the blinder racks to view the covers. With the twin protections of physical segregation and coverage of the bottom two-thirds of the material, a mischievous minor cannot physically access the material to lift it off the blinder rack or view the harmful material from afar by peeking into the “adults only” section. As this interpretation is both the least intrusive on the First Amendment and the most consistent with the history and language of the statute, the “display” provision of Ark. Code Ann. § 5-68-502(1) (A) should be interpreted to require both segregation and cover of the lower two-thirds of material with harmful covers but it would not be applicable to material with benign covers. Thus, in my view, books and magazines that have contents containing materials harmful to minors but which have no such materials on their binders or covers are not being “displayed” under the statute if they are simply shelved in bookcases or on bookshelves.
Dickey, C.J., and Brown, J., join.In the unlikely and highly improbable situation that the book was open to the harmful passage, the material would likely be “displayed.”