Upper Midwest Booksellers Ass'n v. City of Minneapolis , 780 F.2d 1389 ( 1985 )

BOWMAN, Circuit Judge.

This case presents the question of the constitutionality of a portion of an ordinance enacted by the City of Minneapolis (City) that attempts to regulate the manner in which certain sexually explicit material deemed “harmful to minors” is displayed for sale. Upper Midwest Booksellers Association, a trade organization of retail merchants, and Harvey Hertz, an individual bookseller, filed suit against the City seeking to have a portion of the ordinance declared unconstitutional and to enjoin its enforcement. (We hereinafter refer to the plaintiffs-appellants ' collectively as Midwest.) The District Court¹ issued a temporary restraining order directing the City not to enforce the ordinance pending a final hearing. After the final hearing, the Minneapolis City Council amended the ordinance to meet some of Midwest’s objections. The District Court, 602 F.Supp. 1361, then held that the ordinance satisfied constitutional standards with the exception of one provision of the ordinance granting exemptions from coverage to several groups. The Court severed the offending provision and upheld the remainder of the ordinance. Midwest appeals from the judgment below asserting that the District Court erroneously determined that the challenged display provision of the ordinance was permissible under the First Amendment as applied to the States through the Fourteenth Amendment and that the District Court erred in deciding that the invalid portion of the ordinance properly could be severed from the remainder of the ordinance. We affirm.

I.

On July 13, 1984, the Minneapolis City Council enacted section 385.131 of the Minneapolis City Ordinances.² Subsection 6 of the ordinance makes it unlawful for any person knowingly to display for commercial purposes any material that is “harmful to minors” unless that material is in a sealed wrapper. The ordinance further requires an opaque cover on any material whose “cover, covers, or packaging, standing alone, is harmful to minors.” Minneapolis City Ord. § 385.131(6)(a).³ The District Court held that the display regulations contained in subsection 6 are constitutionally permissible.

Subsection 6 of the ordinance is an adoption of one of the recommendations of the Final Report of the City of Minneapolis Task Force on Pornography, see Joint Appendix at 30, and is limited strictly to those materials that the ordinance defines as “harmful to minors.” Subsection 3(e) of the ordinance defines “harmful to minors” as follows:

“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.⁴

Minneapolis City Ord. § 385.131(3)(e).

Subsections 6(b) and 7 of the ordinance provide two exemptions to the above requirements. First, the provisions of the ordinance requiring sealed wrappers and opaque covers do not apply if minors are not allowed to be present or are not able to view the proscribed materials or their covers. Id. § 385.131(6)(b). A business is considered in compliance with this exception if it physically segregates the proscribed material so that minors cannot be present or cannot view the materials, posts a sign reading “Adults Only — you must be 18 to enter,” and enforces these restrictions. Id. Second, subsection 7(a) exempts schools, religious institutions, and certain other entities and individuals from liability under the ordinance. Id. § 385.131(7)(a). The District Court held that subsection 7(a) violated the equal protection clause of the Fourteenth Amendment and severed that provision from the remainder of the ordinance. The City has not appealed the District Court’s decision that subsection 7(a) violates the equal protection clause.

II.

Midwest relies on the First Amendment overbreadth doctrine to challenge the facial validity of subsection 6 of the Minneapolis ordinance.⁵ Subsection 6 of the ordinance is the sole portion of the ordinance challenged in this appeal. Midwest first contends that the City exceeded the scope of its governmental authority to regulate the dissemination of sexually explicit material by requiring an opaque cover on any item whose cover standing alone is harmful to minors. Midwest argues that this provision is constitutionally overbroad because whether material is subject to regulation must be assessed on the basis of the work taken as a whole. Midwest further asserts that the cover and wrapper requirements of the ordinance are overbroad because they impermissibly limit the access of adults to materials that are constitutionally protected as to them.

The Supreme Court has noted that the overbreadth doctrine is “strong medicine” that should be employed only “with hesitation, and then ‘only as a last resort.’ ” New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)). The Court further observed that, at least when conduct plus speech is involved, the overbreadth must be “real” and “substantial” in relation to an ordinance’s “plainly legitimate sweep” before the ordinance should be invalidated on its face. 458 U.S. at 770, 102 S.Ct. at 3361. The Minneapolis ordinance relates to both conduct and speech because it regulates the manner in which certain speech may be disseminated. The ordinance, therefore, must be substantially overbroad before we will invalidate it on its face.

A.

It is a settled proposition that a state is entitled under its police power to regulate obscene material. See Miller v. California, 413 U.S. 15, 22, 93 S.Ct. 2607, 2613, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). The Supreme Court, however, has found it somewhat more difficult to agree upon a standard to assess whether particular material is obscene and thus not entitled to constitutional protection. In Miller, the Court provided the current definition of obscenity. The Court held that to regulate materials as obscene, the regulation must “be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615.

The Court, in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), upheld a New York statute, similar to the Minneapolis ordinance, prohibiting the sale of certain sexually explicit material to minors under the age of 17 when the material was within the statutory definition of “harmful to minors.” The New York statute’s definition of “harmful to minors” was an adaptation of the pre-Miller obscenity standard to require an assessment of whether the material was suitable for minors under prevailing community standards. Justice Brennan, writing for the majority, held that it was constitutionally permissible for New York “to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see.” Ginsberg, 390 U.S. at 637, 88 S.Ct. at 1279. The Court, quoting Chief Judge Fuld of the New York Court of Appeals in People v. Kahan, 15 N.Y.2d 311, 312, 258 N.Y.S.2d 391, 392, 206 N.E.2d 333, 334-35 (1965), observed:

While the supervision of children’s reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society’s transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults.

390 U.S. at 640, 88 S.Ct. at 1281. Justice Stewart explained the Court’s rationale behind allowing greater state regulation to protect children from material otherwise privileged under the First Amendment: “[A] child — like someone in a captive audience — is not possessed of that full capacity of individual choice which is the presupposition of First Amendment guarantees.” Id. at 649-50, 88 S.Ct. at 1286 (Stewart, J., concurring).

Midwest does not contend that the Minneapolis ordinance is overbroad because of its definition of materials that are subject to regulation, i.e., that are harmful to minors. The ordinance’s definition of those materials is substantially the same as the definition approved in Ginsberg except as modified to comport with the Court’s more recent obscenity standard enunciated in Miller. See supra note 4. Instead, Midwest asserts that because subsection 6(a) of the ordinance requires material whose cover alone is harmful to minors to be concealed by an opaque cover, the ordinance exceeds the bounds of appropriate regulation by not assessing the material “as a whole.” In support of this position, Midwest cites Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972), and Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).

In Kois, the publisher of an “underground” newspaper was convicted of disseminating obscene material in violation of state law. The basis of his conviction was the publication of a photograph accompanying an article in the newspaper and the publication of a poem among a group of poems. The article recounted the arrest of one of the newspaper’s photographers on a charge of possession of obscene material and included a picture described as similar to those seized from the photographer. The poem was entitled “Sex Poem” and was a graphic description of the author’s recollection of sexual intercourse. In reversing the publisher’s conviction, the Supreme Court indicated that the material must be “taken as a whole” in determining whether “ ‘the dominant theme of the material ... appealfs] to the prurient interest’ ” and thus may be considered obscene. 408 U.S. at 230, 92 S.Ct. at 2246 (quoting Roth, 354 U.S. at 489, 77 S.Ct. at 1311).

Our reading of Kois leads us to conclude that the “taken as a whole” requirement has no application outside the context of an attempt totally to suppress obscene material or criminally to prosecute someone for the dissemination of that material.⁶ As the legal context changes, the line between permissible and impermissible standards of regulation on the part of the State shifts as well. The Court in Kois observed that “[a] reviewing court must, of necessity, look at the context of the material, as well as its content.” 408 U.S. at 231, 92 S.Ct. at 2247. We note that the photo in Kois was placed in the midst of the text and related to and illustrated the point of the article. In the instant case, we discern no harm to First Amendment values that could result from the requirement that sexually explicit covers of books and magazines be shielded from view by an opaque cover. We agree with the District Court 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. The “context” of this material is that it is necessarily physically separated from any material inside the work that could give it “serious value” and thus bears little relation to any point, if indeed there be any, made by the supporting text. Moreover, and perhaps more importantly, the opaque cover portion of the ordinance in no way suppresses the dissemination of the material and thus only mandates the manner of display of the material. We therefore find the “as a whole” requirement as set forth in Kois simply inapplicable.

Likewise, Erznoznik does not mandate the result Midwest contends is required. In Erznoznik, the Court addressed a challenge to the facial validity of a city ordinance that proscribed the exhibition by a drive-in movie theater of any film containing nudity if its screen was visible from a public street or place. The Court observed that the ordinance was neither “directed against sexually explicit nudity, nor ... otherwise limited” and noted that all nudity could not be considered obscene even as to minors. 422 U.S. at 213, 95 S.Ct. at 2274. The Court then held that “[s]peech 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.” Id. at 213-14, 95 S.Ct. at 2275 (citations omitted; emphasis added).

The ordinance in the instant case differs from the ordinance in Erznoznik in two respects. First, the Minneapolis ordinance is limited to only those materials that are obscene as to minors. Second, the ordinance does not seek to suppress those materials. Rather, the opaque cover requirement restricts only the manner in which they may be displayed. Midwest asserts that Erznoznik forecloses any argument that magazine and book covers may be viewed in isolation. Midwest directs attention to the Supreme Court’s rejection of a “similar” argument in Erznoznik, i.e., that a nude scene constitutes the “whole work” to passersby of a drive-in movie theater. We think this argument fails because the ordinance in Erznoznik was impermissible both because it banned mere nudity which was not obscene as to adults or minors and because the enforcement of the ordinance would have resulted in the total suppression of the material in question. The Court in Erznoznik stated only that the material could not be suppressed. Id. The Minneapolis ordinance merely regulates the manner of display of materials harmful to minors. It does not forbid the display of such materials and does not limit their sale to adults. The materials thus are not “suppressed” within the meaning of Erznoz-nik.⁷

We conclude that the “as a whole” requirement does not prevent the City from regulating the manner of display of materials that are harmful to minors because that requirement was adopted in an entirely different setting, namely, in determining whether the materials could be suppressed.⁸ Since the cover provision of the ordinance is intended to protect the welfare of children by governing the manner of display, we now proceed to determine whether the ordinance is a permissible time, place, or manner restriction.

B.

Reasonable time, place, or manner restrictions of speech protected under the First Amendment are permissible to further significant governmental interests. Young v. American Mini Theatres, 427 U.S. 50, 63 n. 18, 96 S.Ct. 2440, 2449 n. 18, 49 L.Ed.2d 310 (1976). The Supreme Court repeatedly has recognized “that the government’s interest in the ‘well-being of its youth’ and in supporting ‘parents’ claim to authority in their own household’ justified] the regulation of otherwise protected expression.” FCC v. Pacifica Foundation, 438 U.S. 726, 749, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978) (quoting Ginsberg, 390 U.S. at 640, 639, 88 S.Ct. at 1281, 1280); see New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57, 93 S.Ct. 2628, 2635, 37 L.Ed.2d 446 (1973). As we observed above, obscene material generally is not entitled to any constitutional protection and thus may be regulated by the state. The problem in this case arises because the Minneapolis ordinance regulates the display, rather than only the sale to minors, of material that is obscene as to minors but which is not obscene as to adults. The ordinance therefore limits to some extent the ability of adults to visit a bookstore or newsstand and browse through material that is obscene as to children but not as to adults. Because the regulation here simultaneously affects material protected in relation to one group — adults—and unprotected in relation to another group — minors—it falls into the interstices of current First Amendment doctrine. The question we must address is whether the City has struck an appropriate balance between its legitimate interest in the protection of its young and allowing adults access to material protected under the First Amendment.

The Minneapolis ordinance is basically the same as the statute upheld in Ginsberg except that the ordinance here not only prohibits the dissemination to minors of material obscene as to them but also restricts the manner of display of that material. The sealed wrapper requirement prevents either adults or minors from scanning the material prior to purchase.⁹ Thus, the restrictions contained in the ordinance do have an incidental effect on the First Amendment rights of adults. Midwest argues that this incidental effect renders the ordinance invalid under Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957). In Butler, the Supreme Court unanimously condemned a statute absolutely prohibiting adults or minors from disseminating or possessing any material “tending to the corruption of the morals of youth.” Id. at 381, 77 S.Ct. at 525. The Court stated that the legislation was “not reasonably restricted to the evil with which it is said to deal” and noted that the result of the statute was “to reduce the adult population ... to reading only what is fit for children.” Id. at 383, 77 S.Ct. at 526.

Although it is true that the sealed wrapper provision limits adults as well as children from engaging in pre-purchase examination of material regulated by the ordinance, we do not find the ordinance to be incompatible with Butler. The statute in Butler resulted in the total suppression of the material covered by the statute. Here, as the District Court observed, the ordinance “does not prohibit adults from purchasing non-obscene materials; adults continue to have ultimate access to the materials in question.” 602 F. Supp. at 1370. We note that the Supreme Court has rejected suggestions similar to that now advanced by Midwest regarding the applicability of Butler to restrictions that are intended to protect minors but that also affect adults, and we decline to extend Butler to prohibit, reasonably structured display regulations. See Ginsberg, 390 U.S. at 634-35, 88 S.Ct. at 1277-78 (Butler inapplicable because retailers not prohibited from stocking and selling magazines covered under statute); Pacifica Foundation, 438 U.S. at 750 n. 28, 98 S.Ct. at 3040 n. 28 (adults still may purchase material despite restrictions).

We believe that the ordinance in the instant case is one that is “carefully limited,” Miller, 413 U.S. at 24, 93 S.Ct. at 2614, and that does not unduly burden the First Amendment rights of adults. See Butler, 352 U.S. at 383, 77 S.Ct. at 525; cf. Erznoz-nik, 422 U.S. at 213, 95 S.Ct. at 2274. Any burden here is the result of the permissible regulation of material that is obscene as to minors. The restriction in relation to adults is merely an incidental effect of the permissible regulation and is minimal in its impact. Adults are still free to request a copy of restricted material to view from a merchant or to peruse the material in adults only bookstores or in segregated sections of ordinary retail establishments. More significantly, adults are still able to view any of the material in a free and unfettered fashion by purchasing it. The continued availability of these materials to adults for purchase under the ordinance weighs strongly in favor of the ordinance’s constitutionality. In upholding the FCC’s action to regulate the broadcast of “indecent” material, the Supreme Court observed in Pacifica Foundation that the regulation “does not by any means reduce adults to hearing only what is fit for children. Cf. Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525. Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words.” 438 U.S. at 750 n. 28, 98 S.Ct. at 3040 n. 28; see also id. at 760, 98 S.Ct. at 3046 (Powell, J., concurring, joined by Blackmun, J.). Similarly, adults under the Minneapolis ordinance continue to have access to the material simply by purchasing it or going to retail establishments that have an adults only policy or segregated sections for those materials that fall within the definition of harmful to minors. For these reasons, we believe that the ordinance “leave[s] open adequate alternative channels of communication,” Schad v. Borough of Mount Ephraim, 452 U.S. 61, 76, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671 (1981), and that it does not unconstitutionally restrict the access of adults to protected material under the First Amendment.¹⁰

Midwest also suggests that the Minneapolis ordinance does not qualify as a time, place, or manner restriction because it is not content-neutral. Although content-based regulation usually is proscribed, some content-based time, place, or manner restrictions have been approved by the Supreme Court. See, e.g., 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); Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Even though the regulation mandated by the Minneapolis ordinance may be a content-based time, place, or manner restriction impinging upon the rights of adults, we nevertheless believe that it is permissible as a reasonable means of attempting to control the merchandising to minors of sexually explicit material obscene as to them.

In Young v. American Mini Theatres, the Supreme Court upheld two zoning ordinance amendments that prohibited the location of adult theaters within certain distances of residential areas or certain other kinds of businesses. Justice Stevens, writing for the Court, noted that “there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political sig-nificance____” 427 U.S. at 61, 96 S.Ct. at 2448. A plurality of the Court found that the zoning ordinance was content-based regulation and stated that “what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, even though the determination of whether a particular film fits that characterization turns on the nature of its content, [and] we conclude that the city’s interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures.” Id. at 71-72, 96 S.Ct. at 2453 (plurality opinion).

Any material covered by the Minneapolis ordinance is likely to be on the “borderline between pornography and artistic expression” since to be subject to the ordinance the material must be obscene at least as to minors. The ordinance here results in a restriction on both the manner in which and the place where particular material may be exhibited. We believe that the City’s substantial interest in the well-being of its youth in the instant case supports its classification of the materials at issue, just as Detroit’s interest in the quality of its neighborhoods in Young justified that ordinance’s zoning restrictions.¹¹

Similarly, we believe that the Minneapolis ordinance also satisfies the conditions delineated by Justice Powell in his concurrence in Young. In Justice Powell’s opinion, the First Amendment “prompts essentially two inquiries: (i) Does the ordinance impose any content limitation on the creators of adult movies or their ability to make them available to whom they desire, and (ii) does it restrict in any significant way the viewing of these movies by those who desire to see them?” 427 U.S. at 78. The Minneapolis ordinance imposes no content limitations on the creators of the regulated materials and the materials continue to be available to all adults. The Minneapolis ordinance does have the effect of withholding offensive expression from the young “without restricting the expression at its source,” Pacifica Foundation, 438 U.S. at 749, 98 S.Ct. at 3040, and thus is narrowly tailored to achieve its purpose.¹² While the ordinance does restrict to some degree the ability of adults to view these materials prior to purchase, we do not believe these restrictions are “significant” since they relate primarily to the manner of display of the materials and the restrictions do not suppress the materials. Cf Pacifi-ca Foundation, 438 U.S. at 760, 762, 98 S.Ct. at 3046, 3047 (Powell, J., concurring).

That such regulation is allowable in the instant case derives ample support not only from Young, but from other Supreme Court cases as well. For example, the Court observed in New York v. Ferber that it has “sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” 458 U.S. at 757, 102 S.Ct. at 3354. Additionally, Justice Brennan’s dissenting opinion in Slaton implicitly supports the result reached here. In discussing the permissible scope of state regulation of sexually explicit material, Justice Brennan stated:

I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly “obscene” contents. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material.

Slaton, 413 U.S. at 113, 93 S.Ct. at 2662 (Brennan, J., dissenting) (emphasis added). We believe it is likely that the Minneapolis ordinance is the type of permissible regulation that Justice Brennan had in mind in Slaton, and in any event we are convinced that it satisfies the requirements for a valid time, place, or manner restriction. Finding a total absence of the “substantial overbreadth” necessary to facially invalidate an ordinance, Ferber, 458 U.S. at 769, 102 S.Ct. at 3361, we affirm the District Court’s holding that subsection 6 of the Minneapolis ordinance does not violate the First Amendment.

III.

As its final point, Midwest argues that the District Court erred in severing subsection 7(a) from the remainder of the ordinance after determining that it violated the equal protection clause. Subsection 7(a) exempts schools, religious institutions, and certain other entities and individuals from liability under the ordinance. The District Court found that the motivation behind the exemption was to allow parents to control the manner in which their children are exposed to sexually explicit material. This was to be accomplished by permitting the exempt organizations and individuals to use sexually explicit materials in a non-commercial setting primarily for purposes of sex education. The District Court observed that the ordinance was intended to control the effects of commercialized obscenity on minors and that this purpose would not be defeated by severing the constitutionally unsound provision. 602 F.Supp. at 1375.

The District Court relied upon City of Duluth v. Sarette, 283 N.W.2d 533 (Minn. 1979), as its authority to sever subsection 7(a) from the balance of the Minneapolis ordinance. 602 F.Supp. at 1375. In Sar-ette, the Minnesota Supreme Court held that an exemption provision similar to subsection 7(a) was severable from a general obscenity ordinance. The purpose of the exemption there was to allow the exempt organizations to employ the generally proscribed material for “legitimate uses” without potentially becoming subject to criminal penalties. The court in Sarette held that the exemption provision was unnecessary and superfluous given the Miller obscenity standard which already required that the material be without “serious literary, artistic, political, or scientific value” before the material could be regulated. The District Court believed that the analysis used in Sarette was equally applicable to the Minneapolis ordinance. We agree. Since the ordinance is directed at controlling the effects of commercialized obscenity on minors, severance of the exemption provision works no harm to the overall scheme of the ordinance. Only in the event that one of the individuals or organizations listed in the exemption provision attempts to commercially disseminate the proscribed material would the ordinance apply.

In holding that the severance of the offending provision of the ordinance is proper, we are not by any stretch of the imagination rewriting the ordinance. The scope of the ordinance and its purpose are clearly stated. The ordinance is aimed at commercial dissemination of material harmful to minors, and we are satisfied that the exemption provision was intended only to clarify that certain non-commercial uses of the material were not proscribed.¹³ Since this result is achieved without the exemption provision, severance of that provision was appropriate. This view is in accord with the Supreme Court’s instruction in INS v. Chadha, 462 U.S. 919, 934,103 S.Ct. 2764, 2775, 77 L.Ed.2d 317 (1983), that an unconstitutional provision of an ordinance is “presumed severable if what remains after severance ‘is fully operative as a law.’ ” (citation omitted). Because it is possible to sever the exemption provision without upsetting the legislative scheme, the ordinance remains “fully operative” and we affirm the decision of the District Court in regard to the severance.

IV.

Winston Churchill, speaking before the English House of Commons, once observed that “[t]he United States is a land of free speech. Nowhere is speech freer — not even here where we sedulously cultivate it even in its most repulsive form.” See Bartlett’s Familiar Quotations 746:6 (15th ed. 1980). Since that statement was made in 1944, the volume and variety of “repulsive” forms of speech available in the United States has increased immeasurably. The ordinance at issue here is intended to limit the exposure of minors to the material in this realm which is thought to be harmful to their development as mature adults. The Minneapolis City Council has acted in response to what it perceives to be a matter of serious concern to the public and a serious threat to the well-being of the City’s young. We are not inclined to say that the City’s elected representatives are mistaken in their perception of the problem. Even if we were so inclined, it is not the business of the courts to second-guess the wisdom or efficacy of validly enacted legislation. As Justice Black aptly noted in his dissent in Griswold v. Connecticut, 381 U.S. 479, 520-21, 85 S.Ct. 1678, 1701, 14 L.Ed.2d 510 (1965): “[TJhere is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational.” Since the Minneapolis ordinance places reasonable restrictions upon the display of the material subject to regulation and therefore does not contravene the First Amendment, the judgment of the District Court is affirmed.

1 . The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota.

2 . The full text of Minneapolis City Ord. § 385.-131 is set forth as an Appendix at the conclusion of this opinion.

3 . Subsection 4 of the ordinance prohibits the sale of materials to minors that are obscene as to them. Minneapolis City Ord. § 385.131(4). Midwest has not challenged the constitutional validity of subsection 4 of the ordinance.

4 . In Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), the Supreme Court approved the concept of "variable obscenity,” allowing an adaptation of the prevailing obscenity standard enunciated in Roth v. United. States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), to assess the obscenity of material relative to minors on the basis of its appeal to them. Since Ginsberg, however, the Court has restructured the obscenity standard for adults in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Subsection 3(e) of the Minneapolis ordinance is substantially the same as the statute in Ginsberg except as altered to reflect the new criteria set forth in Miller. The formulation of the juvenile obscenity standard used in the Minneapolis ordinance is similar to that upheld in M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.1983).

5 . The City challenged the standing of plaintiffs-appellants to seek declaratory and injunctive relief in the proceedings below. The District Court fully addressed this matter and rejected the City’s standing arguments. Although the City has not raised the standing issue before this Court, we note our agreement with the District Court’s resolution of the issue because of the jurisdictional nature of the standing requirement. We believe that the District Court properly applied the relaxed standing requirements that exist when First Amendment rights and values are potentially at stake. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981); Broad-rick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 2915-17, 37 L.Ed.2d 830 (1973); Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972).

6 . Midwest also asserts that assessing an item’s cover "standing alone” is contrary to the Supreme Court's holdings in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), and Splawn v. California, 431 U.S. 595, 97 S.Ct. 1987, 52 L.Ed.2d 606 (1977). In both of those cases the Court held that "pandering,” the exploitative use of sexuality in advertising, may be used in determining whether the advertised material as a whole is obscene. Again, the context in Ginzburg and Splawn is different from that presented here and we reject the application of those cases in the area of display regulations.

7 . Chief Judge Lay argues in his dissent that a distinction between suppression and regulation of display was rejected by the Supreme Court in Erznoznik. See post at 1401. The sentence following the one cited by the Chief Judge for this proposition, however, notes that the record in that case did not reflect what cost the restraint on expression would have involved. We believe that this latter sentence indicates support for our position that restraints that are minimal and affect only the method of display are permissible.

8 . Midwest cites several cases for the proposition that books and magazines that are "plainly divisible" into separate parts still must be considered as a whole for purposes of determining obscenity. See, e.g., Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.1980); Shealy v. State, 675 S.W.2d 215 (Tex.Crim.App. 1984). Midwest concedes, however, that these cases deal with the dissemination of books and magazines rather than with their display. For that reason, we find these cases inapposite as well.

9 . The dissent suggests that we do not address whether the opaque cover requirement is a valid time, place, or manner restriction. See post at 1402. Because we perceive the sealed wrapper requirement as considerably more restrictive and because the opaque cover provision applies only to those materials whose cover is harmful to minors, we believe that the opaque cover provision of the ordinance easily passes muster under the balancing analysis under which the sealed wrapper provision of the ordinance is sustained.

10 . We also reject Midwest’s contention that the courts uniformly have condemned display legislation similar to the Minneapolis ordinance. See M.S. News v. Casado, 721 F.2d 1281 (10th Cir.1983); American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984). The ordinances involved in the cases cited by Midwest contain absolute prohibitions against display without providing the alternatives contained in the Minneapolis ordinance, see American Booksellers Association v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981), or they attempt to regulate material that is not obscene as to minors. See, e.g., Rushia v. Town of Ashbumham, 582 F.Supp. 900 (D.Mass.1983); American Booksellers Association v. Superior Court, 129 Cal. App.3d 197, 181 Cal.Rptr. 33 (1982); Calderon v. City of Buffalo, 61 A.D.2d 323, 402 N.Y.S.2d 685 (1978). To the extent that these or other opinions indicate that the type of display provision at issue here infringes unnecessarily on the protected rights of adults, we respectfully disagree. See McAuliffe, 533 F.Supp. at 56.

11 . Additionally, Midwest challenges the Minneapolis ordinance by asserting that the City Council lacked any empirical data demonstrating that "fleeting glances” of sexually explicit book or magazine covers are harmful to minors. Midwest principally relies on Young and Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir.1981), to suggest that an empirical basis is required to enact ordinances containing content-based time, place, or manner restrictions such as the one in the instant case. We reject the application of that requirement here.

It is true that demonstrated findings that the presence of adult theaters caused neighborhood deterioration were a factor in upholding the ordinance in Young. That case and the other cases cited by Midwest, including Avalon, however, all involve zoning regulations restricting business locations notwithstanding any obscenity challenge to films exhibited at those businesses. Legislatures need not evince evidence that is "scientifically certain” to support an enactment that regulates material that is obscene as to minors: instead, "[t]o sustain state power ... requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.” Ginsberg, 390 U.S. at 641, 88 S.Ct. at 1281. The City Council here relied on the findings and recommendations of the City Task Force on Pornography which had conducted hearings and reviewed literature on the subject. The Court in Ginsberg approved a statute regulating the same material as does the Minneapolis ordinance. We see no distinction between finding that exposure by virtue of the display of proscribed materials is harmful to minors and finding that the sale of proscribed material is harmful. We cannot say that the legislature's conclusion here is not rational.

12 . In M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.1983), the Tenth Circuit upheld a Wichita ordinance similar to the Minneapolis ordinance against a challenge to its facial validity. The Wichita ordinance prohibited the display of materials harmful to minors when minors could be present and the material would be exposed to their view. The materials were not displayed for purposes of the ordinance if they were concealed behind "blinder racks” covering the lower two-thirds of the covers of the material. The court held that the regulation, although based on content, was a reasonable time, place, or manner regulation and that it did not unreasonably restrict adults’ access to material obscene as to minors but not obscene as to adults. While the restrictions here are somewhat broader than those in M.S. News, we do not view these restrictions as circumscribing the access of adults to protected material in any significant manner.

13 . For this reason we disagree with Midwest’s assertion that severing subsection 7(a) expands the class of persons subject to criminal liability. We read the ordinance to state that any person, including those enumerated in the exemption provision, who commercially disseminates the proscribed material is subject to criminal liability. Deleting subsection 7(a), therefore, does not expand the class of persons potentially liable under the ordinance.