Opposition Brief — Massachusetts v. Oakes

In The CLERK

Supreme Court of the United States

October Term, 1987

+

COMMONWEALTH OF MASSACHUSETTS,

- Petitioner,

DOUGLAS OAKES,

Respondent.

+

On Petition for a Writ of Certiorari

to the Supreme Judicial Court for the

Commonwealth of Massachusetts

+

BRIEF IN OPPOSITION

=

RICHARD J. VITA

Counsel of Record

RicHarp J. Vita, P.C.

Jeffrey L. Baler

(on the brief)

2 Oliver Street

Ninth Floor

Boston, MA 02109

(617) 426-6566

May 2, 1988

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

I.

II.

i

QUESTIONS PRESENTED

DID THE COURT BELOW PROPERLY DEEM

MASSACHUSETTS GENERAL LAW C. 272

§29A INVALID ON ITS FACE BECAUSE ITS

SWEEPING PROHIBITION AGAINST

NUDITY PER SE PERMITS COUNTLESS

IMPERMISSIBLE APPLICATIONS TO THE

PROTECTED CONSTITUTIONAL ACTIV-

ITIES OF NUMEROUS OTHERS?

WHETHER MASSACHUSETTS GENERAL

LAW C. 272 §29A RUNS AFOUL OF THE

FIRST AMENDMENT OVERBREADTH DOC-

TRINE AS IT RELATES TO RESPONDENT?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....................... i

TABLE OF AUTHORITIES CITED............... iii

is nAcwdininnncuacdsGabensdacedousatenenns ili

BG TRDUESW BOUIGIEBs occ cv cccsccisccccsccccccss iii

I 6.6 vs 6hk ccd ndeuehenvd cogéaeciekeeens iv

STATEMENT OF THE CASE..................... 1

REASONS FOR DENYING THE WRIT........... 3

I. GENERAL LAW C. 272 §29A IS OVER-

BROAD UNDER DOCTRINE SET OUT BY

THIS COURT IN NEW YORK V. FERBER,

GES UE. FE Geb esectiacdacwnsciatess 3

A. MASSACHUSETTS GENERAL LAW C.

272 §29A IS PROPERLY DEEMED

INVALID ON ITS FACE BECAUSE ITS

SWEEPING PROHIBITION AGAINST

NUDITY PER SE PERMITS COUNT-

LESS IMPERMISSIBLE APPLICA-

TIONS TO THE PROTECTED

CONSTITUTIONAL ACTIVITIES OF

NUMEROUS OTHERS................ 3

B. FIRST AMENDMENT OVER-

BREADTH IS AN APPROPRIATE

REMEDY UNDER THE CIRCUM-

STANCES OF THE PRESENT CASE 7

CTR ARID: 0 6s ccsccséccesenseneasentebadananes 12

ili

TABLE OF AUTHORITIES

Page

CaSEs:

Broadnick v. Oklahoma, 413 U.S. 601 (1973) ....... 4

Chaplinsky v. New Hampshire, 315 U.S. 568

RSE Ee 7

City of Houston v. Hill, 482 U.S. __, 107 S.Ct.

2502, 96 L.Ed. 2d 398, (1987). ...........eseeeeees 4

Commonwealth v. Oakes, 401 Mass. 602, 518 NE

RE 11

Erznoznick v. City of Jacksonville, 422 U.S. 205

ELS EES ne ee eee 4,10

Gooding v. Wilson, 405 U.S. 578 (1972)............. 6

Lerman v. Flynt Distributing Co., Inc. 745 F. 2d

re 4

Miller v. California, 413 U.S. 15 (1973)....... 7, 8,9

New York v. Ferber, 458 U.S. 747 (1982)...... passim

Secretary of State of Maryland v. Munson, 467

SER on 3, 4

Village of Schaumburg v. Citizens For A Better

Environment, 447 U.S. 620 (1980) ................ 7

Young v. American Mini Theatres, 427 U.S. 50

EEE ES 10

Law Review ARTICLEs:

Note, Child Pornography and Unprotected

Speech; Supreme Court, 1981 Term, 96 Harv.

Tee ee acc enenecocesesccces 9

iv

TABLE OF AUTHORITIES-Continued

Page

STATUTES:

SED odes csebecdutdeddesécacn ees passim

ES i, RE ee Te 10, 11

IN I, Se eee 1, 5

STATEMENT OF THE CASE

On January 9, 1985, the appellant, Mr. Douglas

Oakes, was indicted by a Worcester County Grand Jury

and charged with posing a person under eighteen years

of age for pornographic purposes in violation of Massa-

chusetts General Law c. 272 §§ 29A, 31.

On March 21, 1985, Mr. Oakes filed with Worcester

Superior Court, a Request to Report the issue of the

constitutionality of the statute, to the Appeals Court of

Massachusetts pursuant to Rule 24 of the Massa-

chusetts Rules of Criminal Procedure. The appellant

also filed a Motion to Dismiss the indictment on the

grounds that the statute violated the Massachusetts

and United States Constitutions. On July 16, 1985 the

Superior Court denied the Motion to Dismiss and the

Request for Report.

On October 10, 1985 Mr. Oakes was tried before a

jury and found guilty. The following facts were pre-

sented to the jury:

The respondent, Mr. Douglas Oakes, is the step-

father of the complainant, Miss Laurie Supernor. In

1983, Ms. Supernor, at the age of fourteen (14), decided

to pursue a modeling career. In that same year, she

enrolled in LaFemmina Modeling School (Trial Tr. at

23) and thereafter entered several beauty pageants

(Trial Tr. at 41,42). Ms. Supernor had pictures taken of

her at the modeling school (Trial Tr. at 30). She also

modeled at home where Mr. Oakes took photos of his

daughter for the purpose of assembling a modeling

portfolio (Trial Tr. at 30-31). Mrs. Oakes would also

take pictures of her daughter on occasion (Trial Tr. at

42).

This case centers around ten (10) photographs pur-

portedly taken by Mr. Oakes in 1984. The photos show

Ms. Supernor, then fourteen (14), sitting with her

breasts partially exposed (Trial Tr. at 25, 29-30). These

select photos which were introduced at trial do not

display any private parts of the subject’s lower body.

The photos do not and were not argued by the Common-

wealth to depict the subject engaged in any sexually

explicit conduct or sexually suggestive act. All ten (10)

photos show the subject in the same attire with her

breasts partially covered (Trial Tr. at 25, 29-30).

On October 11, 1985 Mr. Oakes was sentenced to

serve a term of imprisonment of ten years at Massa-

chusetts Correctional Institute at Concord (M.C.I.

Concord).

Both the evidence adduced at trial and the jury

instructions given by the trial judge make clear that

the appellant was convicted under the first proscribed

offense-exhibiting a person under 18 years of age in a

state of nudity (Trial Tr. at 101-104). The record is

devoid of any evidence suggesting the minor was

depicted or was engaged in sexually explicit conduct.

Further, even though the state of nudity which the

subject was in was limited to the partial exposure of

her breasts, the jury brought back a conviction after

being instructed that nudity included the “uncovered

post pubertal human female breast”.

On November 7, 1985 a Notice of Appeal was timely

filed to the Appeals Court of the Commonwealth of

Massachusetts. This appeal was subsequently trans-

ferred, sua sponte, to the Supreme Judicial Court of

Massachusetts.

On February 3, 1987 the case was argued before

the Full Court of the Supreme Judicial Court of the

Commonwealth of Massachusetts. On February 1, 1988

the Supreme Judicial Court reversed Oakes’ conviction

and dismissed the indictment holding that Massa-

chusetts General Law c. 272 §29A was unconstitu-

tionally overbroad.

—®

REASONS FOR DENYING THE WRIT

I. GENERAL LAW C. 272 §29A IS OVER-

BROAD UNDER DOCTRINE SET OUT BY

THIS COURT IN NEW YORK V. FERBER,

458 U.S. 747 (1982).

A. MASSACHUSETTS GENERAL LAW C.

272 §29A IS PROPERLY DEEMED

INVALID ON ITS FACE BECAUSE ITS

SWEEPING PROHIBITION AGAINST

NUDITY PER SE PERMITS COUNT:

LESS IMPERMISSIBLE APPLICA-

TIONS TO THE PROTECTED

CONSTITUTIONAL ACTIVITIES OF

NUMEROUS OTHERS.

The doctrine of overbreadth allows a litigant whose

own activities are unprotected to challenge a statute by

showing that it substantially abridges the rights of

other parties not before the court. Secretary of State of

Maryland v. Munson, 467 U.S. 947, 956-957 (1984),

Village of Schaumberg v. Citizens for a Better Environ-

ment, 444 U.S. 620, 634 (1980). Where First Amend-

ment rights are at issue, a party generally has standing

to challenge a statute as applied to other cases. Broad-

nick v. Oklahoma, 413 U.S. 601, 611 (1973). “[W]hen

there is a danger of chilling free speech, the concern

that constitutional adjudication be avoided whenever

possible may be outweighed by society’s interest in

having the statute challenged”. Munson at 956.

While this type of broad attack is limited where a

statute regulates conduct as opposed to pure speech,

Broadnick at 614-615, if the overbreadth is substantial

in relation to the statutes’ legitimate sweep, a broad

attack is allowed. Jd. at 615. “Criminal statutes must

be scrutinized with particular care (cite omitted); those

that make unlawful a substantial amount of constitu-

tionally protected conduct may be held facially invalid

even if they also have legitimate application”. City of

Houston v. Hill, 482 U.S. __, 107 S.Ct. 2502, 96 L.Ed.

2d 398, 410 (1987).

The statute in question proscribes both conduct

and pure speech. That is, the statute proscribes not

only the physical taking of pictures but also the devel-

opment and dissemination of such photos in traditional

forms of speech such as books and films. New York uv.

Ferber, 458 U.S. 747, 771 (1982); See also, e.g. Lerman

v. Flynt Distributing Co., Inc., 745 F.2d 123 (2nd Cir.

1984) (magazine pictures pure speech); Erznoznick v.

City of Jacksonville, 422 U.S. 205 (1975) (motion pic-

ture film pure speech). Thus the overbreadth of M.G.L.

c. 272 §29A must be sufficiently substantial to warrant

its invalidation.

The appellant submits that the overbreadth of

M.G.L. c. 272 §29A as it incorporates §31 is so vast as

to result in substantial suppression of constitutionally

protected expression. The activity literally proscribed

by the statute includes much that is completely lawful.

The statute in question prohibits

“any person from hiring, coercing, soliciting,

employing, procurring, using, causing, encouraging

or knowingly permitting a person under 18 to pose

or be exhibited in a state of nudity for purposes of

representation or reproduction in a book, maga-

zine, pamphlet, motion picture film, photograph or

picture”. M.G.L. c. 272 §29A.

The definition of nudity includes uncovered or less

than opaquely covered human genitals or pubic area of

a person under 18. M.G.L. c. 272 §31. These two provi-

sions permit many impermissible applications of the

statute, applications that significantly compromise tra-

ditional First Amendment activities. For instance, a

parent who takes a picture of his child running up and

down the beach without clothes on is in violation of the

statute. Further, the mother who proudly stands by and

watches the father take such a picture is literally

“permitting” this picture taking and is also committing

a criminal act. The statute would prohibit a police

detective from taking a picture of a child murder victim

laying naked on the floor. A child war victim, laying

nude, shown in a 6 p.m. newsreel would fall within the

definition of nudity.

The definition of nudity in the statute also includes

the uncovered or less than opaquely covered post

pubertal human female breast. M.G.L. c. 272 §31.

6

Puberty is defined as that period of life at which one

becomes functionally capable of reproduction. Taber's

Cyclopedia Medical Dictionary (13th ed. 1977). Puberty

may occur from the ages of nine to sixteen in girls. Jd.

Thus, for purposes of the statute, a girl might be in

post-pubertal stage anywhere between the ages of nine

and seventeen. Thus, the statute would effectively pro-

hibit a parent from taking a picture of a post-pubertal

11 year old without a bathing suit top on at the beach.

It would prevent the display of the post-pubertal female

breast in a magazine or movie picture regardless of the

context in which the picture was taken. For instance,

the statute would prohibit the filming of Brooke Shields

in the movie “Blue Lagoon” in this Commonwealth. A

professional model under the age of 18 who models less

than “opaquely covering” lingerie might be considered

in a state of nudity.

M.G.L. c. 272 §29A is unlike the New York statue in

Ferber, where the court found that the “arguably imper-

missible application of the statute amount/ed] to... a

tiny fraction of the material within the statute’s reach.

Ferber, 458 U.S. at 773. The Massachusetts statute

sweeps more broadly because it does not require that

the nudity be obscene, nor sexually explicit, nor lewd.

It is therefore subject to the uncertainties and vagaries

of prosecutorial discretion. See Gooding v. Wilson, 405

U.S. 518, 519 (1972).

While the narrow purpose of M.G.L. c. 272 §29A is

legitimate, its chilling effect is to deter professional

movie producers, photographers and even parents from

taking pictures containing a person under eighteen (18)

who is not completely clothed. These persons who have

heretofore exercised their constitutionally protected

rights now run the risk of prosecution no matter how

innocent or tasteful their activity. Because of this over-

breadth, M.G.L. c. 272 §29A should be deemed invalid

on its face.

B. FIRST AMENDMENT OVERBREADTH IS

AN APPROPRIATE REMEDY UNDER THE

CIRCUMSTANCES OF THE PRESENT

CASE.

Although the Massachusetts Supreme Judicial

Court did not decide the issue in view of its determina-

tion of argument A above, the statute is also uncon-

stitutional as it relates to Mr. Oakes.

The statute in question, Massachusetts General

Law c. 272 §29A impermissibly restricts respondent’s

constitutionally protected speech. Therefore, the appli-

cation of First Amendment overbreadth doctrine by the

Supreme Judicial Court is warranted and appropriate.

As previously stated the statute is primarily directed at

traditional forms of first amendment activity and

expression. See, supra at Page 4.

Because of the “inherent dangers of undertaking to

regulate any form of expression,” Miller v. California,

413 U.S. 15, 23 (1973), this Court has devised limits on

what falls within the permissible scope of first amend-

ment regulation. While a statute may proscribe what

has been deemed unprotected speech, see e.g. Chap-

linsky v. New Hampshire, 315 U.S. 568 (1972)

(unprotected speech raises no constitutional question),

the restriction cannot be so broad that it substantially

restricts speech that retains first amendment protec-

tion. See Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620, 637 (1980). The appellant

submits that M.G.L. c. 272 §29A, as it incorporates §31,

is unconstitutional because in regulating unprotected

expression, it has made protected expression the sub-

ject of a criminal offense.

For several years the guidelines enunciated in Mil-

ler v. California, 413 U.S. 15, were used as guidance in

determining the appropriate line dividing protected

from unprotected expression. New York v. Ferber, 458

U.S. at 753. If material was deemed legally obscene

under the Miller test it was considered unprotected

expression and thus subject to state regulations. Miller

v. California, 413 U.S. 15.

In New York v. Ferber, this Court extended the

category of unprotected speech to include non-obscene

material depicting sexual conduct by children

(emphasis added). Ferber, supra at 764. In Ferber, a

bookstore proprietor was convicted for selling films

depicting young boys masturbating under a New York

statute which banned the distribution of non-obscene

materials depicting sexual conduct by children. Id. at

749.

This Court was careful to point out, however, that

“laws directed at .. . child pornography run the risk of

suppressing protected expression by allowing the hand

of the censor to become unduly heavy.” Jd. at 756. This

Court concluded:

There are of course limits in the category of child

pornography which, like obscenity, is unprotected

by the First Amendment. The nature of the harm to

be combated requires that the offense be limited to

9

works that visually depict sexual conduct by chil-

gg below a specified age . . . (emphasis added).

Thus, under Ferber, nudity not involving sexual con-

duct, even if children are involved, retained first

amendment protection. Indeed, the test for child por-

nography assumes that sexual conduct is present. Jd. at

764. Conversely, it is clear that material cannot legally

be found to contain child pornography if there is no

sexual conduct present. See Note, Child Pornography

and Unprotected Speech; Supreme Court, 1981 Term, 96

Harv. L. Rev. 141, 149 (1982) (category of unprotected

speech in Ferber is restricted to abusive and exploit-

ative material or hard core child pornography).

The limited holding in Ferber does not tie the

hands of the state legislature from proscribing the

depiction of children in the nude unless the children

are involved in some grotesque sexually deviate behav-

ior. The lewd exhibition of the genitals is considered to

represent the kind of conduct which a state may per-

missibly proscribe by including this conduct in its defi-

nition of sexual conduct. Ferber, 458 U.S. at 765,

quoting from Miller, 413 U.S. at 25.

The pictures which led to the respondent’s convic-

tion are devoid of any act or pose, that can even

remotely resemble sexual conduct. The subject is not

engaged in any sexually explicit act, nor is the subject’s

genital area exposed. The pictures are of a nonsexual

non-obscene semi-nude nature. The pictures cannot be

considered “pornographic” under Ferber, since they con-

tain nothing more harmful or more serious than nudity

10

per se. Indeed, the respondent’s conviction is a quintes-

sential illustration of “the hand of the censors becoming

unduly heavy”. Ferber, 458 U.S. at 756.

By enacting M.G.L. c. 272 §29A, the Massachusetts

Legislature exceeded the constitutionally permissible

scope of state regulation. The statute effectively turned

a photograph containing semi-nudity without more into

evidence of a criminal act. While pictures of the semi-

exposed female breast of a person under eighteen (18)

years of age may be distasteful to a legislature, the

government may not censor what it subjectively finds

offensive. See Young v. American Mini Theatres, 427

U.S. 50, 85-87 96 S. Ct. 2440 (1976); Erznoznick v. City

of Jacksonville, 422 U.S. 205. If the statute’s purpose is

to prevent child pornography, the Massachusetts legis-

lature could narrowly draft such a statute limited to,

for example, lewd exhibition. Further, in Massa-

chusetts dissemination of visual material of a child in

state of nudity or sexual conduct is prohibited by

M.G.L. c. 272 §29B which reads in part:

Whoever disseminates any visual material that

contains a representation or reproduction of any

posture or exhibition in a state of nudity or of any

act that depicts, describes, or represents sexual

conduct participated or engaged in by a child who is

under eighteen years of age, knowing the contents

of such visual material or having sufficient facts in

his possession to have knowledge of the contents

thereof, or whoever has in his possession any such

visual material knowing the contents or having

sufficient facts in his possession to have knowledge

of the contents thereof, with the intent to dissemi-

nate the same, shall be punished in the state prison

for a term of not less than ten nor more than

twenty years or by a fine of not less than ten

11

thousand dollars nor more than fifty thousand dol-

lars or three times the monetary value of any eco-

nomic gain derived from said dissemination,

whichever is greater, or by both such fine and

imprisonment.

Thus, §29B greatly limits an individual’s attempt at

child pornography and renders prohibition of child por-

nography under §29A substantially repetitive.

Section 29A’s proscription against semi-nudity per

se, as is evidenced in the present case, is unconstitu-

tionally overbroad because it absolutely proscribes con-

duct and speech which has heretofore been recognized

as protected expression under the First Amendment.

Indeed, as Justice Wilkins of the Massachusetts

Supreme Judicial court stated “It criminalizes conduct

that virtually every person would regard as lawful.

Section 29A, for example, makes a criminal of a pareat

who takes a frontal view picture of his or her naked

one-year old running on a beach or romping in a wading

pool.” Commonwealth v. Oakes, 401 Mass. 602, 605, 518

NE 2d 836 (1988).

12

CONCLUSION

For the reasons stated, the Petition for a Writ of

Certiorari to the Supreme Judicial Court for the Com-

monwealth of Massachusetts should be denied. The

Judgment of the Supreme Judicial Court should be

upheld and affirmed.

RICHARD J. VITA

Counsel of Record

Ricuwarp J. Vita, P.C.

JEFFREY L. BALER

(on the Brief)

2 Oliver Street

Ninth Floor

Boston, MA 02109

Dated: May 2, 1988