Summary - A-57-22
Subsection (c) of the definition of “portray a child in a sexually suggestive manner” in N.J.S.A. 2C:24-4(b)(1) is unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography. Because defendant was not charged under subsections (a) or (b) of the definition of “portray a child in a sexually suggestive manner,” and did not challenge subsections (a) or (b) before the trial court or the Appellate Division, the Court does not reach the validity of those subsections.
1. Narrow categories of speech that are historically unprotected by the First Amendment include fighting words, obscenity, child pornography, incitement, defamation, true threats, and speech integral to criminal conduct. Child erotica is not on the list, but both obscenity and child pornography are relevant to this case. Under Miller v. California, something is obscene if (1) “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest”; (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. 15, 24 (1973). Whereas states may constitutionally proscribe the distribution of obscene material, possession of obscene material by the individual in the privacy of his own home is constitutionally protected. (pp. 13-14)
2. In New York v. Ferber, the Court recognized a separate exception to the First Amendment for child pornography. 458 U.S. 747, 764 (1982). The Court has upheld statutes that define child pornography as the portrayal of “sexual conduct” or “sexual acts” by children, which includes the lewd or lascivious exhibition of, or graphic focus on, a child’s genitals or pubic area. Id. at 751-53, 762. Child pornography need not meet the Miller obscenity standard to be proscribed; it is a separate type of speech that is categorically unprotected by the First Amendment. And unlike obscenity, states may constitutionally proscribe the possession and viewing of child pornography in the privacy of one’s home. But laws that ban images that “do not involve, let alone harm, any children in the production process,” violate the First Amendment unless they conform to the Miller obscenity standard. Ashcroft v. Free Speech Coal., 535 U.S. 234, 240-41 (2002).
(pp. 14-17)
3. A court may hold a law facially overbroad under the First Amendment “[i]f the challenger demonstrates that the statute ‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep.’” United States v. Hansen, 599 U.S. 762, 770 (2023). “[A] law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep.” Ibid. (pp. 17-18)
4. “[A]n item depicting the sexual exploitation or abuse of a child” was formerly defined as an image that “depicts a child engaging in a prohibited sexual act or in the simulation of such an act.” N.J.S.A. 2C:24-4(b)(1) (2017). In 2017, the Legislature amended N.J.S.A. 2C:24-4 to expand the definition to include an image that “portrays a child in a sexually suggestive manner,” which is defined in three ways in subsections (a) through (c). Subsections (a) and (b) use nearly identical language to criminalize any depiction of “a child’s less than completely and opaquely covered intimate parts” or “any form of contact with a child’s intimate parts,” whereas subsection (c) uses different language to criminalize other depictions of children “for the purpose of sexual stimulation or gratification of any person.” (pp. 19-21)
5. The first step in any overbreadth analysis is to construe the challenged statute to determine what it covers. Subsection (c) says nothing about obscenity. Although it incorporates Miller’s third prong by requiring that “the depiction does not have serious literary, artistic, political, or scientific value,” it says nothing about Miller’s first or second prongs. Subsection (c) therefore criminalizes a substantial amount of speech that does not legally constitute obscenity. Subsection (c) also strays far beyond the definition of child pornography set forth in Ferber. Where the criminalization depends only on whether “any person who may view the depiction” can use it “for the purpose of sexual stimulation or gratification,” and where the only limit is that the depiction lacks “serious literary, artistic, political, or scientific value,” large swaths of protected material are conceivably ensnared. Indeed, depictions of something other than sexual contact and less than completely covered intimate parts appear to be the only thing that subsection (c) can actually reach that subsections (a) and (b) do not. On its face, subsection (c) criminalizes only materials that do not constitute child pornography. Because the application of subsection (c) to images that constitute neither obscenity nor child pornography is realistic, not fanciful, and is substantially disproportionate to subsection (c)’s lawful sweep, subsection (c) is substantially overbroad. (pp. 23-27)
6. The Court explains why it rejects the State’s suggestion that limiting language from subsections (a) and (b) of the definition of “portray a child in a sexually suggestive manner” could be understood to apply to subsection (c) as well, noting that (a), (b), and (c) are disjunctive, that subsection (c) is not reasonably susceptible to the State’s limiting construction, and that the Court cannot re-write a plainly written legislative enactment. The Court also rejects the State’s claim that “everything that subsection (c) covers . . . fits within” the Supreme Court’s most recent definition of child pornography in United States v. Williams, 553 U.S. 285 (2008). In Williams, the Supreme Court proscribed “obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct.” Id. at 293. But subsection (c) proscribes far more than that. (pp. 27-34)
7. Because subsection (c) can be excised without impacting subsections (a) or (b), the Court holds that subsection (c) alone of the definition of “portray a child in a sexually suggestive manner” contained in N.J.S.A. 2C:24-4(b)(1) is unconstitutional. Defendant can be constitutionally prosecuted under New Jersey’s obscenity law but not under a different law that is unconstitutionally overbroad. (pp. 35-36)