|Massachusetts v. Oakes
401 Mass. 602, 518 N.E.2d 836, vacated and remanded.
[ O'Connor ]
[ Scalia ]
[ Brennan ]
Massachusetts v. Oakes
CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
JUSTICE SCALIA, with whom JUSTICE BLACKMUN joins, and with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join as to Part I, concurring in the judgment in part and dissenting in part.
I do not agree with the plurality's conclusion that the overbreadth defense is unavailable when the statute alleged to run afoul of that doctrine has been amended to eliminate the [p586] basis for the overbreadth challenge. It seems to me strange judicial theory that a conviction initially invalid can be resuscitated by postconviction alteration of the statute under which it was obtained. Indeed, I would even think it strange judicial theory that an act which is lawful when committed (because the statute that proscribes it is overbroad) can become retroactively unlawful if the statute is amended preindictment. Of course the reason we are tempted to create such curiosities is that the overbreadth doctrine allows a defendant to attack a statute because of its effect on conduct other than the conduct for which the defendant is being punished, thus protecting the right to engage in conduct not directly before the court. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). And the argument is made that it is senseless to apply this doctrine when the protection of other conduct can no longer be achieved, which is the case when the statute has already been amended to eliminate any unconstitutional "chilling" of First Amendment rights. Even as a policy argument, this analysis fails. The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact. If the promulgation of overbroad laws affecting speech was cost-free, as the plurality's new doctrine would make it -- that is, if no conviction of constitutionally proscribable conduct would be lost so long as the offending statute was narrowed before the final appeal -- then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place. When one takes account of those overbroad statutes that are never challenged, and of the time that elapses before the ones that are challenged are amended to come within constitutional bounds, a substantial amount of legitimate speech would be "chilled" as a consequence of the rule the plurality would adopt. [p587]
More fundamentally, however, even if the plurality's policy analysis were correct, it seems to me that we are only free to pursue policy objectives through the modes of action traditionally followed by the courts and by the law. In my view, we have the power to adopt a rule of law which says that the defendant's acts were lawful because the statute that sought to prohibit them was overbroad and therefore invalid. I do not think we have the power to pursue the policy underlying that rule of law more directly and precisely, saying that we will hold the defendant criminally liable or not, depending upon whether, by the time his last appeal is exhausted, letting him off would serve to eliminate any First Amendment "chill." Even if one were of the view that some of the uses of the overbreadth doctrine have been excessive, this would not be a legitimate manner in which to rein it in. [n1] The plurality [p588] seeks to cloak its extravagant constitutional doctrine in conservative garb borrowed from an entirely different area of the law, saying that "[a]n overbroad statute is not void ab initio, but rather voidable." Ante at 584. I have heard of a voidable contract, but never of a voidable law. The notion is bizarre.
Since I find that the subsequent amendment of the statute under which Oakes acted and was convicted does not eliminate the defense of overbreadth, I reach the question whether the statute is impermissibly overbroad. I do not believe that it is. Because the Court as a whole does not reach the question, I sketch my views on it only in brief.
In order to be invalidated under our overbreadth doctrine, a statute's unconstitutional application must be substantial, not just in an absolute sense, but "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). We held in New York v. Ferber, 458 U.S. 747, 756-757 (1982), that the State has a "compelling" interest in "safeguarding the physical and psychological well being of . . . minor[s]" against harm of the sort at issue here. That case upheld against First Amendment attack a law directed against the use of children in pornographic (including nonobscene) materials. (Although the prohibition related to the distribution of pictures, rather than the making of them, the former would seem to be even closer to the core of the First Amendment.) Thus, the scope of this statute has already been validated except as to nonpornographic depiction of preadolescent genitals, and postadolescent genitals and female breasts. On that basis alone, given the known extent of the so-called kiddie-porn industry, Act of May 21, 1984, 98 Stat. 204, and of pornographic magazines that use young female models (to one of which the defendant here apparently intended to send his stepdaughter's photograph), I would estimate that the legitimate scope vastly exceeds the illegitimate. [p589]
But the statute is narrowed further still, since it excludes material
produced, processed, published, printed or manufactured for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.
The only significant body of material that would remain, I estimate, consists of artistic depictions not "produced, processed, published, printed or manufactured . . . for a bona fide school, museum or library," and (the example posited by the Massachusetts court) family snapshots. As to the former: even assuming that proscribing artistic depictions of preadolescent genitals and postadolescent breasts is impermissible, [n2] the body of material that would be covered is, as far as I am aware, insignificant compared with the lawful scope of the statute. That leaves the family photos. The Supreme Judicial Court interpreted the statute to cover "a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool." 401 Mass. at 605, 518 N.E.2d at 838. Assuming that it is unconstitutional (as opposed to merely foolish) to prohibit such photography, I do not think it so common as to make the statute substantially overbroad. We can deal with such a situation in the unlikely event some prosecutor brings an indictment. Cf. Ferber, supra, at 773-774, quoting Broadrick, supra, at 615-616.
Perhaps I am wrong in my estimation of how frequently the posings prohibited by this law are done for artistic purposes, or for family photographs -- or in some other legitimate [p590] and constitutionally protected context I have not envisioned. My perception differs, for example, from JUSTICE BRENNAN's belief that there is an "abundance of baby and child photographs taken every day" depicting genitals, post at 598. But it is the burden of the person whose conduct is legitimately proscribable, and who seeks to invalidate the entire law because of its application to someone else, to "demonstrate from the text of [the law] and from actual fact" that substantial overbreadth exists. New York State Club Assn. v. New York City, 487 U.S. 1, 14 (1988) (emphasis added). That has not been done here.
Having found the ground upon which the Supreme Judicial Court of Massachusetts relied to be in error, I would reverse and remand the case to permit that court to dispose of the as-applied challenge.
1. Bigelow v. Virginia, 421 U.S. 809 (1975), is not to the contrary. In that case, which similarly involved both a facial and an as-applied challenge to a statute that had been amended postconviction, the Court said:
In view of the statute's amendment since Bigelow's conviction in such a way as "effectively to repeal" its prior application, there is no possibility now that the statute's pre-1972 form will be applied again to appellant or will chill the rights of others. As a practical matter, the issue of its overbreadth has become moot for the future. We therefore decline to rest our decision on overbreadth, and we pass on to the further inquiry, of greater moment not only for Bigelow but for others, whether the statute, as applied to appellant, infringed constitutionally protected speech.
Id. at 817-818.
Although the dissent in Bigelow characterized this as a statement that "Virginia's statute cannot properly be invalidated on grounds of overbreadth," id. at 830 (REHNQUIST, J., dissenting), I do not think it says that. Whether the statute is invalid because of overbreadth and whether the issue of overbreadth should be reached are two quite different questions, and it is only the latter that the Court addressed. The Court simply decided that, since the question whether the statute was overbroad was no longer of general interest ("ha[d] become moot for the future"), whereas the issues involved in the as-applied challenge were of continuing importance, the Court would more profitably expend its time on the latter. Moreover, as the Court held Bigelow's conviction unconstitutional on as-applied grounds, it was unnecessary to decide the merits of the overbreadth issue in that case.
2. JUSTICE BRENNAN evidently believes that the State cannot bar the use of children for nude modeling without reference to "the adult's intentions or the sexually explicit nature of the minor's conduct." Post at 597. That is not unquestionably true. Most adults, I expect, would not hire themselves out as nude models, whatever the intention of the photographer or artist, and however unerotic the pose. There is no cause to think children are less sensitive. It is not unreasonable, therefore, for a State to regard parents' using (or permitting the use) of their children as nude models, or other adults' use of consenting minors, as a form of child exploitation.