I know it when I see it


Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.

Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:

One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special  sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation  officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and  (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or  treatment.

Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.

As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition:

was unconstitutionally overbroad and vague on its face and unconstitutionally vague as applied to him, and that the evidence was insufficient to support the  trial court’s finding that he had violated the condition.

The Court summarily dismisses his overbreadth argument, citing a long line of SCOTUS decisions (see Virginia v. Hicks) holding that such an analysis is appropriate only if First Amendment rights are implicated. And there’s the puzzling thing. In its decision, the Court takes great pains to point out – over and over again – that Stephens is not making a First Amendment challenge to the special condition of probation barring his possession of adult pornography. The only challenges made are under the Constitutional right to privacy, which are just as easily dispensed with:

For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . . [T]o prevail on his claim, the defendant must demonstrate beyond a  reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.

The Court finds – as it should – that possessing nude photographs constitutes possessing sexually explicit material, but there is an important – and useful – holding when it comes to the second prong. Although the Court holds that the materials possessed by Stephens fall squarely within core meaning of the special condition, and thus there was no violation of his right to privacy, the condition itself may not pass constitutional muster in a different case:

[When] a statute provides insufficient general guidance, an as-applied vagueness challenge may nonetheless fail if the statute’s meaning has a clear core. . . . In that case the inquiry will involve determining whether the conduct at issue falls so squarely in the core of what is prohibited by the law that there is no  substantial concern about arbitrary enforcement because no reasonable enforcing officer could doubt the law’s application in the circumstances.’’ (Citations  omitted; internal quotation marks omitted.) Farrell v. Burke, 449 F.3d 470, 493–94 (2d Cir. 2006). Under the foregoing standard, we cannot conclude that the  special condition prohibiting the defendant from possessing ‘‘sexually stimulating material deemed inappropriate by a [p]robation [o]fficer’’ provided  sufficient, general guidance for law enforcement purposes.

Given the jurisprudence in this area and the Court’s proper application of it, it really bothers me that a First Amendment challenge was no raised, especially given the holding of Stanley v. Georgia:

He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.

Without this First Amendment challenge, it is Connecticut law that conditions of probation that prohibit the mere possession of adult pornography by an adult are valid. And the materials don’t even have to be obscene.

Putting aside the Constitutional aspects of this case, it is worth pondering whether such conditions really have any value or are counter-productive? Would we rather have an adult male relieving his sexual tension while viewing adult pornography, or would we rather that this tension bottle up and percolate and perhaps dangerously spill over into action that may endanger those around him?

Are we at the point where we’re approving any and all restrictions on these modern-day witches without rational thought and forethought? There are legitimate reasons – whether you’re on probation or not – to prohibit the creation, possession and dissemination of child pornography. I can see that. The possession of adult pornography, in the words of Justice Stewart, is not that.

Whew. Made it through a porn post without a single mention of 2 Girls 1 Cu-dammit. Don’t Google that. It’s for your own good.

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  1. Pingback: Judge imposes blanket internet ban on sex offender | a public defender

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