Amicus Curiae Brief — Massachusetts v. Oakes

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Ww No. 87-1651

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Vv.

DOUGLAS OAKES,

Respondent.

On Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE

IN SUPPORT OF PETITIONER

ELIZABETH K. SPAHN *

154 Stuart Street

Boston, MA 02116

(617) 451-0010

Attorney for

Massachusetts Society for

Prevention of Cruelty

* Counsel of Record to Children

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1651

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Vv.

DOUGLAS OAKES,

Respondent.

On Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

Massachusetts Society for the Prevention of Cruelty to

Children (MSPCC) and 29 other organizations serving

the needs of children respectfully move for leave to file

the attached brief amicus curiae in support of the Com-

monwealth of Massachusetts in this case. The consent of

the attorney for the Petitioner has been obtained. The

consent of the attorney for the Respondent was requested

but no response was received.

All 30 amici are non-profit private organizations ded-

icated to protecting and serving the needs of children of

all races and religions. 26 of these groups are based

in Massachusetts, in many cases providing direct medi-

cal and psychological treatment, shelter, counselling and

support services to children who are the victims of child

pornography and child sexual abuse. Two amici provide

services to children in other states (New York and

Alaska). Two amici, the Child Welfare League of Amer-

ica, and the American Humane Association, are major

national organizations providing leadership throughout

the 50 states in protecting children from abuse and neg-

lect. A complete list and brief description of each or-

ganization are found in the attached Appendix.

All 30 organizations are concerned that the invalida-

tion of the Massachusetts child pornography statute has

left children unprotected from even the most vicious child

pornography. Because of their unique perspectives as

direct service providers treating children victimized by

pornography, their families, as well as perpetrators of

child sexual abuse, amici respectfully seek this Court’s

leave to file the attached brief.

Respectfully submitted,

ELIZABETH K. SPAHN *

154 Stuart Street

Boston, MA 02116

(617) 451-0010

Attorney for

Massachusetts Society for

Prevention of Cruelty

to Children

* Counsel of Record

QUESTION PRESENTED

Whether the theoretical possibility that a criminal

statute designed to prevent the sexual abuse and exploita-

tion of children could be applied marginally to activity

protected by the First Amendment justifies invalidation

of the entire statute on overbreadth grounds and reversal

of respondent’s conviction without deciding whether the

respondent’s actions were within the statute’s substan-

tial legitimate reach.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ............-------------------1--e-eeeeoo>

TABLE OF AUTHORITIES ...............---------------0----000000"

STATEMENT OF INTEREST .................--------------0-----++

SUMMARY OF ARGUMENT .............----.----------0--0--000+

TOTTI aaecnecnscenc nsec cece rscn esc cssennsconcesesenensennensepcscose

Il.

Ill.

A Single, Imaginary Hypothetical Does Not,

Under Federal Law, Justify The Facial Invali-

dation Of An Entire Statute In The Absence

Of A “Realistic Danger’ To Third Parties’

Speech, Unless The Overbreadth Is Incurable

And Would Taint All Possible Applications Of

a di eeidaniiinapenniniahesnticine

Analyzing A Child Pornography Statute As If

It Constituted Political Speech, Where the Stat-

ute, Itself Contains An Exception For Educa-

tional, Scientific, Medical And Cultural Pur-

poses, Is Reversible Error In The Application

Of Federal Constitutional Law ........................-.--

Facial Invalidation Of A Child Pornography

Statute Is Inappropriate Where Alternative

Narrowing Constructions Could Cure Whatever

Marginal Overbreadth Might Be Imagined —_

CONICLIUGION q...-2ccceccccecceenccececssoccccsscrcnsccssesessenassscensesnesees

DTI —anceciececsvesecescccncscnessessocsninnenestennsnnerennnnnssccaienniens

(iii)

Page

TABLE OF AUTHORITIES

CASES Page

Ashwander v. Tennessee Valley Authority, 297

it SS 0 eer ere nees 21

Bates v. State Bar of Ariz., 433 U.S. 350 (1977).. 14, 15

Boston v. Treasurer, 384 Mass. 718 (1981) ...........-- 21

Broadrick v. Oklahoma, 413 U.S. 601 (1973)........ 5

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

CO no ia coneisemnennnenendenarinienienineeness 7,21

Commonwealth v. Lammi, 386 Mass. 299 (1982).. 21

Commonwealth v. Oakes, 401 Mass. 602 (1988) ....passim

Commonwealth v. O’Neil, 233 Mass. 535 (1919).... 21

Frisby v. Schultz, 56 U.S.L.W. 4785 (U.S. June

Oe SII ii ccenisecsiasinnnipnitelsnsnectianatacaeianeingncbiecoateetmiithia 18, 19

Houston v. Hill, 482 U.S. ——, 107 S.Ct. 2502,

Pe ff Fy EE een 6, 7

Lakewood v. Plain Dealer Publishing Co., 56 U.S.

L.W. 4611 (U.S. June 14, 1988) _ ....................---- 13, 14

Meyer v. Grant, 56 U.S.L.W. 4516 (U.S. June 7,

CERES ne OED a Ailend) On a Ae) ree 15

Miller v. California, 413 U.S. 15 (1973) ................ 11, 20

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

New York State Club Ass’n., Inc. v. City of New

York, 56 U.S.L.W. 4653 (June 29, 1988)........ 6

Shapero v. Kentucky Bar Ass’n., 56 U.S.L.W. 4532

GS Ee 15

United States v. Albertini, 472 U.S. 675 (1985)... 16

United States v. O’Brien, 391 U.S. 367 (1968) ...... 16

STATUTES AND RULES

Mass. Gen. Laws Ann. ch. 272, sec. 29A (West

TD a issncnnccopsecncscenssvinmmnssinsinintedndittimmidiotediad 8, 17, 20

Mass. Gen. Laws Ann. ch. 272, sec. 31 (West

SS , ee ae eee 19

Mass. Gen. Laws Ann. ch. 604, sec. 8 (West Supp.

RSIS eR re esrcape ee ane ren Oe 20

MISCELLANEOUS

A.W. Burgess, C. Hartman, M. McCausland and

P. Powers, Response Patterns in Children and

Adolescents Exploited Through Sex Rings and

Pornography, 141:5 Am. J. Psychiatry 656

—_ 12

TABLE OF AUTHORITIES—Continued

Page

D. Campagna and D. Poffenberger, The Sexual

Trafficking in Children, Auburn House Pub-

I i cciesscnninsacetiinciscecinteneensiaeniesinidiabibeninein 8

H. Davidson and G. Loken, Child Pornography and

Prostitution, National Center for Missing &

Exploited Children, National Obscenity En-

forcement Unit, U.S. Dept. of Justice (1987) .... 11

S. Goldstein, The Sexual Exploitation of Children,

Elsevier Science Publishing (1987) ...................-- &

K. Lanning, Child Molesters: A Behavioral Anal-

ysis for Law Enforcement Officers Investigating

Cases of Child Sexual Exploitation, National

Center for Missing & Exploited Children

COED wccossicevinnecietincnteninesndniseppntnbininininitnemmuamncaainns 7,8,9

Sen. Comm. on Governmental Affairs, Perm. Sub.

Comm. 99th Cong. 2d Sess., Rep. No. 99-536,

Child Pornography and Pedophilia (1986)........ 8

U.S. Dept. of Justice, Attorney General’s Comm’n

on Pornography, Final Report (1986) ................. 8,11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1651

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Vv.

DOUGLAS OAKES,

Respondent.

On Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

BRIEF AMICI CURIAE

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST

The Massachusetts Society for the Prevention of Cruelty

to Children and 29 other child protective service organi-

zations are dedicated to the protection of children, and

to serving children and their families, including perpe-

trators of child sexual abuse and pornography. Amici

include two major national organizations and 26 direct

service providers serving children at risk in Massachu-

setts. Two other amici provide services to children in

other states (New York and Alaska). Several amici pro-

vide self-help or counselling and therapy services to child

sexual abusers. Other amici specialize in the long term

residential treatment of victims of child sexual abuse who

have themselves become sexual abusers of younger

children. (See attached Appendix. )

Amici believe based on their clinical, first hand experi-

ence with children and based on scientific research, that

child pornography is a significant form of child sexual

abuse, and that the use of children in nude, sexually sug-

gestive poses or engaged in sexual conduct plays a sig-

nificant role in the cycle of child sexual abuse. Pornog-

raphy is used to blackmail child victims into silence, and

photos of past victims are used to seduce future victims

into imitative behaviors. Taking sexual photographs of

children causes serious long term emotional disturbances

in many victims.

The facia! invalidation of the Massachusetts child por-

nography statute has resulted in a number of pending

prosecutions being dismissed and has left all the child

victims without any legal protection. It has created the

appearance of legal approval of sexual photography of

children with potentially serious effects on children cur-

rently exploited. Amici are interested in the outcome of

this case because of their direct involvement in assisting

the victims of child pornography.

SUMMARY OF ARGUMENT

The Massachusetts Supreme Judicial Court erred in

three important respects in construing federal overbreadth

doctrine. First, the court relied on a single imaginary

hypothetical without considering whether the statute

presented a realistic danger of chilling third parties’

speech, and without considering whether any overbreadth

would be incurable and taint all possible applications of

the statute. Second, the court analyzed a child pornog-

raphy statute as if it were political speech, when there

is no danger of eroding core political speech because the

statute contains an exception for educational, scientific,

medical and cultural materials. Third, the court erred

in facially invalidating a statute without considering

alternative narrowing constructions.

The lower court’s primary First Amendment concern

rested on a single imaginary hypothetical—nude frontal

photographs of a one year old on a beach or romping in

a wading pool. The federal constitution has never been

interpreted to require perfect congruence between the

statutory purposes and imaginary, hypothetical over-

broad applications of the means. Only where a substan-

tial amount of constitutionally protected conduct is

within the sweep of the statute should it be stricken as

facially overbroad. Substantial overbreadth has been in-

terpreted to mean that the law could never be applied in

a valid manner, or that it is so broad that it might in-

hibit the constitutionally protected speech of third par-

ties. There must be some showing of a realistic danger

of inhibiting third parties’ speech. Unlike prior Supreme

Court cases, there has been no showing in the case at bar

that any pattern of prosecutorial overbreadth in applica-

tion exists, nor is it likely that reasonable parents would

be chilled in their ordinary photography of children by

the mere existence of criminal child pornography stat-

utes. (Fages 5-7.)

Any imaginary overbreadth is not incurable, nor would

it taint all possible applications of the child pornography

statute. The central core of activity included within this

statute involves pedophilia, child sexual abuse and exploi-

tation. Child pornography plays a central role in deviant

sexual abuse of children by pedophiles. Scientific re-

search since 1982 has shown that photography of children

is substantially inseparable from sexual abuse of chil-

dren, is associated with child prostitution, and it may be

a significant factor in the development of later deviant

behaviors. Application of the Massachusetts statute to

hard core child pornography is not incurably tainted by

the hypothetical overbreadth. (Pages 7-9.)

Distinguishing between the untainted hard core por-

nography and the hypothetical toddler romping at the

beach can be accomplished by external, verifiable factual

evidence surrounding the method of production of the

photographs, the method of collecting and saving the

photos, and the actual use of the photos to blackmail or

instruct future child victims. (Pages 9-12.)

The lower court erred in treating a child pornography

statute as if it were political speech protected at the

highest levels of judicial scrutiny. The lower court

seemed to believe that either the activity was “speech”

and therefore any conceivable overbreadth required facial

invalidation, or the activity was “conduct” and com-

pletely beyond the scope of the First Amendment. The

correct federal constitutional standard for examining a

statute addressing child pornography is to ensure that

the permissible regulation does not erode protected speech.

The Massachusetts statute contains an explicit exemption

for educational, scientific, medical and cultural materials.

(Pages 12-18.)

The lower court did not consider alternatives to facial

invalidation. Two limiting constructions of the statute

are possible if the hypothetical overbreadth is viewed as

substantial. First, the Court could construe the prohibi-

tion on nudity as including only child nudity in a sexual

context, relying on the externally verifiable evidence of

the methods of production, saving, and use of the photo-

graphs. Second, the Court could limit the statute to pro-

tecting children from photographs of sexual conduct and

post-pubescent nudity. (Pages 18-22.)

Amici urge the Court to consider the effect of facial

invalidation on all the children of Massachusetts, who are

currently without any protection from the hardest of

hard core child pornography. (Pages 22-24.)

ARGUMENT

I. A Single, Imaginary Hypothetical Does Not, Under

Federal Law, Justify The Facia| Invalidation Of An

Entire Statute In The Absence Of A “Realistic Danger”

To Third Parties’ Speech, Unless The Overbreadth Is

Incurable And Would “Taint All Possible Applica-

tions” Of The Statute.

The Massachusetts Supreme Judicial Court erred in

construing federal constitutional overbreadth doctrine.

The Massachusetts court held that the child pornography

statute was overbroad because:

[i]t eriminalizes conduct that virtually every person

would regard as lawful. Section 29A, for example,

makes a criminal of a parent who takes a frontal

view picture of his or her naked one-year-old run-

ning on a beach or romping in a wading pool. Surely

the First Amendment protects that kind of activity

even if what the defendant did in this case could

properly be criminalized (a matter we need not de-

cide). Commonwealth v. Oakes, 401 Mass. 602, 605

(1988).

This statement represents the central point in the state

court’s reasoning in striking down the entire child por-

nography statute. Three short sentences purporting to

apply federal overbreadth doctrine have left not only the

Oakes child but every other child in the Commonwealth

unprotected from child pornography.

The lower court misunderstood federal overbreadth

doctrine, which does not require facial invalidation of an

entire statute based on one single imaginary impermis-

sible application. As Justice Brennan explained: “We

have never held that a statute should be held invalid on

its face merely because it is possible to conceive of a

single impermissible application. . . .” Broadrick v.

Oklahoma, 413 U.S. 601, 630 (1973) (Brennan, J., dis-

senting). To require a statute be so perfectly drawn that

not one situation could be imagined which would render

the statute unconstitutional is to require a congruence

between the state’s legitimate purposes and the means

enacted by statute surpassing even the strictest levels of

judicial scrutiny under the Equal Protection Clause.

Overbreadth doctrine in the First Amendment context

does indeed protect our rights to self-expression with

heightened judicial scrutiny. But only where a substan-

tial amount of constitutionally protected conduct is

within the sweep of the statute do the federal courts

strike the entire statute as overbroad. Houston v. Hill,

482 U.S. ——, 107 S. Ct. 2502, 96 L.Ed.2d 398, 410

(1987).

There has been no showing of any overbreadth in ap-

plication of the Massachusetts child pornography statute

other than a single imaginary situation. For an over-

breadth attack to prevail, the challenger must demon-

strate substantial overbreadth. The Court has _ inter-

preted substantial as requiring that the law either

“could never be applied in a valid manner” or that it is

so broad that it “may inhibit the constitutionally pro-

tected speech of third parties.” New York State Club

Association, Inc. v. City of New York, 56 U.S. Law Week

4653, 4656 (1988). The Massachusetts child pornogra-

phy statute clearly meets the first test, since there must

be some valid applications against child pornography.

See, e.g., New York v. Ferber, 458 U.S. 747 (1982). The

second test is likewise met because the Court requires a

showing that there must be a “realistic danger” of com-

promising First Amendment rights of parties not before

the Court. New York State Club Association, Inc. v.

City of New York, 56 U.S.L.W. at 4656. The present

facts indicate no actual or threatened prosecutions of

parents for innocent photos of their toddlers at the beach.

In Houston v. Hill, supra, the Court did find substan-

tial overbreadth in an ordinance which prohibited inten-

tional interference with police officers in the performance

of their duties. The Houston ordinance had been repeat-

edly applied to a political activist, and evidence was in-

troduced at trial which demonstrated a long pattern of

200 actual applications of the statute to conduct clearly

protected by the First Amendment. Houston v. Hill, 96

L.Ed.2d at 408 n.4 and 409 n.5. The contrast between

the Hill case and the case at bar could not be clearer.

Hill involved repeated applications of the ordinance in

ways which violated the First Amendment, and Hill him-

self was convicted by the state courts for speech which

was protected. In the instant case, Massachusetts pros-

ecutors have not been shown to be engaged in even one

prosecution of parents photographing their infants romp-

ing at the beach. The Massachusetts child pornography

statute is clearly directed to the production of sexually

explicit photographs of children.

Unlike Hill, there is no demonstrable pattern which

might chill the rights of third parties not before the

Court. No realistic danger exists that typical family

photos will result in criminal prosecutions and no rea-

sonable parent is likely to be chilled in his or her speech.

The normal federal rule is that a statute should not be

invalidated further than necessary to dispose of the case

before it. Brockett v. Spokane Arcades, Inc., 492 U.S.

492, 502 (1985). The Court observed that unless the

identified overbreadth is “incurable” and would “taint

all possible applications” of the statute, the normal rule

that partial rather than facial invalidation is the re-

quired course. Brockett v. Spokane Arcades, Inc., supra

at 2802.

Any hypothetical potential for overbroad application

to parents photographing toddlers at the beach is not

likely to taint all the other possible applications of the

statute as required by Brockett, supra. The role of pho-

tography in child sexual abuse by pedophiles is of cen-

tral importance. ‘“Law-enforcement investigations have

verified that pedophiles almost always collect child por-

nography or child erotica. Collection is the key word

here. It does not mean that pedophiles merely view the

pornography: They save it. It comes to represent their

most cherished sexual fantasies.” Lanning, K., Child

Molesters: A Behavioral Analysis for Law-Enforcement

Officers Investigating Cases of Child Sexual Exploitation,

National Center for Missing and Exploited Children and

the Federal Bureau of Investigation at 17 (1987). Child

pornography is used to blackmail children, to instruct

future child victims and to condition children by lowering

their inhibitions and resistance to sex.’

The Massachusetts child pornography statute is clearly

directed to photographs of children in sexual contexts.

The language of section 29A covers only nudity or sexual

conduct, and contains an explicit exception for bona fide

scientific, medical, educational or cultural purposes. Any

imaginary application of the statute to nude photographs

of pre-pubertal children in a non-sexual context is not

incurable within the meaning of Brockett, supra. The

question of whether a particular collection of photographs

constitutes an impermissible sexual context is primarily

a question of the factual circumstances surrounding the

method of production, saving and actual use of particular

photos. Any overbreadth in the actual application of

1 Campagna and Poffenberger, The Sexual Trafficking in Children,

Auburn House Publishing Co., 1988 at 116-118. See also Goldstein,

The Sexual Exploitation of Children, Elsevier Science Publishing

Co., 1987 at 123-129. “No single characteristic of pedophilia is more

pervasive than the obsession with child pornography... . Each con-

victed child molester interviewed either collected or produced child

pornography, or both. Most said they had used the material to

lower the inhibitions of children or to coach them into posing for

photographs.” Sen. Comm. on Governmental Affairs, Perm. Sub.

Comm. 99th Cong., 2d Sess., Rep. No. 99-537, Child Pornography and

Pedophilia at pp. 9-12. “The greatest bulk of child pornography is

produced by child abusers themselves in largely ‘cottage industry’

fashion and thus child pornography must be considered as sub-

stantially inseparab.e from the problem of sexual abuse of children.”

U.S. Dept. of Justice, Attorney General’s Comm’n on Pornography,

Final Report at 68,

the statute should, especially in the context of child sex-

ual abuse, be dealt with on a case by case basis.

The definition of sexual or non-sexual context is, ac-

cording to current law enforcement investigative prac-

tices, identifiable by several factors. FBI Agent Lanning

has identified three factors which law enforcement in-

vestigators should examine in determining whether the

photographs of children are indicative of pedophilia. In

production of the photography, pedophiles are likely to

use bribery, trickery or seduction. In saving the photo-

graphs, pedophiles generally have large numbers of

photos all of children in the same age group. The ma-

terial is generally concealed or hidden. The third factor

is the use of the material to blackmail the child victim,

and to instruct future child victims. Lanning, K., supra

at 23-25.

Applying the three salient factors to the hypothetical

case of a one-year old romping at the beach, it is clear

that none of the aspects of impermissible sexual context

would be present. First, the photos would be taken

openly, not secretly. No threats to the child’s physical

well-being, no bribes of drugs, alcohol, money or fame

would be needed for a straightforward photo of a romp at

the beach. Second, the romp at the beach is most likely

to be preserved in a family album together with other

family photos of the child fully clothed, and such an

album is more likely to be proudly displayed to any

person showing the faintest interest than it is likely to

be hidden away. Third, a normal family photo is not

likely to be used to blackmail the victim by threats of

showing it to his or her mother, teacher or friends. Nor

is a family photo likely to be used in a sexual activity

with other children.

Application of the three factors to the actual facts in

the Oakes case presents a very different picture. First,

the nude photos of the child were taken in secret, with-

out the knowledge of the mother or any other person.

Tr. at 37; J.A. 34a. The child was photographed nu-

merous times, nude, in inappropriate lingerie from

Fredericks of Hollywood, and with her breasts exposed.

Tr. at 24, 65-68; J.A. 2la, 34a-35a. The context in which

the photos were taken was clearly sexual and the defend-

ant Oakes told the child that he would take the photos

of her as if they were for Playboy magazine. Tr. at 28;

J.A. 25a. Second, the photos were kept secret, separate

from other family photos of birthdays, Christmas and

vacations. The pornographic photos were first kept by

Mr. Oakes locked away in a safe. Tr. at 45; J.A. 43a.

Later Mr. Oakes moved them to a secret location hidden

in the false ceiling of the basement. Tr. at 36; J.A. 34a.

Third, the coercive power of Mr. Oakes over the child

was manifested when she ripped the photos up and threw

them away in the woods. Mr. Oakes forced her to re-

trieve the pieces of the photos and restore them. Tr. at

27; J.A. 24a. The actual facts of the Oakes case present

no innocent romp at the beach, but rather a secretive,

coercive, sexually provocative exploitation of a minor

child.

The difficulty of distinguishing between impermissible

sexual child nudity and an innocent romp at the beach

arises because a normal healthy interest in sex is not

triggered by pre-pubertal children, nude or otherwise.

If the law required a subjective evaluation based on the

material’s effect on the consumer, as in federal obscenity

standards which focus on “appeal to the prurient inter-

est”, little of the pedophilia pornography could be

reached. The Court in New York v. Ferber, 458 U.S. at

756-758, has already recognized that the states’ interest

in protecting children from pornographic exploitation is

not limited to material which meets traditional federal

obscenity standards. The central distinction is a shift in

focus, away from the subjective assessment of the ma-

terial’s effect on the audience/consumer, and redirected

to the question of the material’s effect on the real child

involved in the production by examining verifiable facts

relating to the production, saving and use of the photos.

Thus purely written material involving fantasies of

child sexual abuse are not prohibited (unless otherwise

obscene under Miller v. California, 413 U.S. 15 (1973)).

The harm occurs only when a living human child is in-

volved in the produciton of sexual photographs.’

Massachusetts and other states must be free to protect

our children from the exploitation of child pornography

unless there is a realistic danger that our prosecutors,

juries and appellate courts are misusing the permis-

sible prohibition against child pornography pretextu-

ally to censor socially valuable political speech. The com-

pelling nature of the states’ interest in protecting chil-

dren from sexual exploitation has been amply recognized

by the Court.’ The role of photography itself has been

2 New York v. Ferber, 458 U.S. at 757 n.9-11, addresses in depth

numerous scientific studies prior to 1982 discussing the harm to

children from being involved in the production of pornography.

“Even if the photographs were never again seen, the very activity

involved in creating the photograph is itself an act of sexual exploi-

tation of children, and thus the issues related to the sexual abuse

of children and those related to child pornography are inextricably

linked.” U.S. Dept. of Justice, Attorney General’s Comm’n on

Pornography, Final Report at 66.

3 The scientific literature assessing the harm to children from

participating in the production of pornography was analyzed in

depth by the Court. New York v. Ferber, 458 U.S. at 758 n.9-11.

Amici would like to call the Court’s attention to additional scientific

research since 1982 regarding the harm to children from participat-

ing in pornography. The interrelationship between child pornogra-

phy and child prostitution was examined in depth by two nationally

recognized experts. Davidson, H. and Loken, G., Child Pornography

and Prostitution, National Center for Missing and Exploited Chil-

dren, National Obscenity Enforcement Unit, U.S. Dept. of Justice

(1987). Mr. Davidson, who is Director of the American Bar Associa-

tion, National Legal Resource Center for Child Advocacy and Pro-

tection. found a significant relationship between child pornography

and child prostitution at p. 3-4.

found to be a significant factor in the development of

later deviant behaviors among children victimized by

pornography.*

There has heen no showing that any overbreadth in

this case would be either incurable or would taint all

possible applications of the statute. The only over-

breadth addressed by the lower court involved an

imaginary situation —toddlers at the beach. Facial in-

validation of the entire statute is inappropriate under

federal overbreadth standards where there is no pattern

of prosecutorial misuse, where no realistic danger exists

of chilling third parties’ speech, and where the hypotheti-

al overbreadth does not taint all possible applications

of the child pornography statute.

Il. Analyzing A Child Pornography Statute As If It Con-

stituted Political Speech, Where The Statute Itself

Contains An Exception For Educational, Scientific,

Medical Or Cultural Purposes, Constitutes Reversible

Error In The Application Of Federal Constitutional

Law.

The second error in applying overbreadth coctrine to

the Oakes case involves a misunderstanding of First

Amendment analysis as developed by this Court under

federal constitutional principles. The central danger of

overly broad statutes which may chill or interfere with

* Burgess, Hartman, MeCausland and Powers, Responae Patterns

in Children and Adoleacenta Exploited Through Ser Rings and

Pornography, 141:5 Am. J. Psychiatry 656, 661 (May, 1984). The

Burgess study evaluated 66 children who had been sexually exploited,

assessing their later paychological and social adjustment. The study

found that the most serious later behaviors, including documented

repetition of the acts on younger children (such as vaginal insertion

of objects and sodomizing or urinating on younger children) were

significantly related to whether the child had been used in pornog-

raphy photographs. “The data suggest that when children are used

for pornography and are in the sex ring for more than a year the

two variables appear to be strongly associated with the development

of deviant and symptomatic behaviors.”

the rights of third parties not before the Court arises

from the vital importance of robust and vigorous debate

in a democratic society. The classical example of a dan-

gerously overbroad statute which would substantially in-

terfere with third parties’ free speech rights even though

the particular defendant might constitutionally be

reached is exemplified by a prior restraint statute operat-

ing in the context of political speech. Last Term, the

Court in Lakewood v. Plain Dealer Publishing Co., 56

U.S.L.W. 4611, 4613 (U.S. June 14, 1988), found a

licensing ordinance vesting unbridled discretion in the

Mayor over newspaper racks on city property danger-

ously overbroad. Several factors were stressed in the

Court’s opinion; the potential for a prior restraint, the

potential for political pressure resulting from unfettered,

standardless licensing power discretion in an elected offi-

cial, and the central importance of protecting a free and

robust press from potential censorship. Having framed

the issue as one of prior restraint of political speech,

the majority of the Court could not constitutionally

tolerate even the potential of overbroad applications.

|Wle have previously identified two major First

Amendment risks associated with unbridled licensing

schemes: self-censorship by speakers in order to

avoid being denied a license to speak; and the diffi-

culty of effectively detecting, reviewing, and correct-

ing content-based censorship ‘as applied’ without

standards by which to measure the licensor’s action.

It is when statutes threaten these risks to a signifi-

cant degree that courts must entertain an immediate

facial attack on the law. Lakewood v. Plain Dealer

Publishing Co., 56 U.S.L.W. at 4614 (Brennan, J.).

The dissenters in Lakewood were less concerned with

the potential for future overbroad applications not be-

cause of any lack of sensitivity to the dangers of prior

restraints and censorship. The dissenters, however,

viewed the location of newsracks on city property as es-

sentially separate from the central concerns of protecting

political speech. “Because the placement ‘of newsracks on

city propetry is not so protected (as opposed to the cir-

culation of newspapers as a general matter), the excep-

tion to our usual facial challenge doctrine does not apply

here.” Lakewood v. Plain Dealer Publishing Co., Inc.,

56 U.S.L.W. at 4617 (White, J. dissenting) (emphasis

added). “Because the Lakewood Ordinance does not di-

rectly regulate an activity protected by the First Amend-

ment, we should instead take the traditional, as-applied

approach to adjudication. .. .”” Lakewood v. Plain Dealer

Publishing Co., Inc., 56 U.S.L.W. at 4621 (White, J.

dissenting) .

Lakewood thus turns on whether the issue is perceived

as closely related to the protection of political speech, in

which case the potential for overbroad application cannot

be tolerated, or as unrelated (or peripherally related) to

political speech in which case the normal] processes of

case-by-case adjudication should properly be employed.

Apparently all members of the Court participating in the

Lakewood case agreed that if the case involved hard core

political speech, the mere potential for overbroad applica-

tion would constitute a serious threat under the First

Amendment.

At the other end of the spectrum, the Court has ad-

dressed the question of potentially overbroad applications

of statutes regulating commercial speech as presenting a

less serious threat under the First Amendment. In Bates

v. State Bar of Arizona, 433 U.S. 350 (1977), the Court

observed that the normal justifications for overbreadth

doctrine applied weakly, if at all, in the ordinary com-

mercial speech context.

[T]here are ‘commonsense differences’ between com-

mercial speech and other varieties. [Since] advertis-

ing is linked to commercial well-being, it seems un-

likely that such speech is particularly susceptible to

being crushed by overbroad regulation. [Moreover],

concerns for uncertainty in determining the scope of

protection are reduced; the advertiser seeks to dis-

seminate information about a product or service that

he provides, and presumably he can determine more

readily than others whether his speech is cruthful

and protected. Bates v. Arizona, 433 U.S. at 381.

This is not to suggest that commercial speech is out-

side the scope of First Amendment protection, nor that

greater scope for governmental regulation of commercial

speech should be permitted to erode protections for the

core of political speech protected at the highest levels of

judicial scrutiny. Shapero v. Kentucky Bar Assoc., 56

U.S.L.W. 4532, 4536 (U.S. June 14, 1988). Whar is

suggested is that the Court requires less perfect con-

gruence in the context of commercial speech, wlh.ile main-

taining the highest levels of required congruence in the

context of political speech. Shapero v. Kentucky Bar

Assoc., 56 U.S.L.W. at 4536-4537 (O’Connor, J. dissent-

ing).

Distinguishing between political and commercial speech

is not always difficult, as the Court found in Meyer v.

Grant, 56 U.S.L.W. 4516 (U.S. June 7, 1988) (unani-

mously characterizing a prohibition against paid petition

circulators as political speech). It merely seems that way

because factually easier cases rarely require review by

the highest Court. Despite the intricacies of occasional

concurring and dissenting opinions, it is clear that there

is substantial common ground among the members of the

Court. Potential overbreadth cannot be tolerated under

the First Amendment where the case involves the central

core of political speech. Less perfect congruence is re-

quired, and potentially overbroad future applications are

less of a threat, where the activity in clearly a purely

commercial transaction. As Justice Stevens observed:

“The question whether a specific act of communication is

protected by the First Amendment always requires some

consideration of both its content and its context.” New

York v. Ferber, 458 U.S. 747, 778, (1982) (Stevens, J.

concurring).

The essential error in the lower court’s opinion in

Oakes, supra, arose because of a misunderstanding of the

permissible scope of overbreadth doctrine in the context

of a statute prohibiting child pornography. The opinion

in Oakes treats the case as one involving political speech,

relying on cases such as United States v. O’Brien, 391 U.S.

867 (1968) (involving a draft card burner) and United

States v. Albertini, 472 U.S. 675 (1985) (involving po-

litical activity on federal military bases). The court

seemed to view the issue as a question of deciding

whether Oakes’ activity fell within one or the other of

two very rigid categories. Commonwealth v. Oakes, 401

Mass. 602, 604-605 (1988). Either the photographs con-

stituted speech, in which case they were to be treated as

political speech protected by the very highest levels of

judicial scrutiny or the photographs were not speech at

all, but rather “conduct”, which would be entirely out-

side the protection of the First Amendment. Not sur-

prisingly, having set up a rigid either/or speech/conduct

dichotomy, the court found itself with no alternative but

to strike down the entire statute based on potential,

hypothetical future misapplications.

If viewed as political speech, it is not surprising that

the Massachusetts court would find even a single hypo-

thetical overbroad application dangerous to First Amend-

ment freedoms. The central error is that child pornog-

raphy cannot plausibly be claimed to constitute political

speech, or even the lesser but still protected category of

commercial speech. Child pornography, as the Court has

unanimously recognized in New York v, Ferber, supra,

is classified as a “category of material outside the protec-

tion of the First Amendment.” New York v. Ferber, 458

U.S. at 763-764. The level of congruence between the

state’s purpose and the statutory means therefore is not

required to be as perfect as if the activity involved po-

litical or even commercial speech.

The central issue in the context of speech which is

characterized as child pornography is whether the statute

is drawn to preserve protection for socially valuable

speech for educational, scientific, medical or cultural pur-

poses. New York v. Ferber, 458 U.S. at 774-775 (O’Con-

nor, J., concurring), and 776-777 (Brennan, J., concur-

ring). The Court’s central concern is ensuring that lower

overbreadth standards for relatively low value speech

such as child pornography not be used to chip away at

the highest levels of protection accorded political and

other socially important speech. The Massachusetts child

pornography statute does in fact contain explicit statu-

tory language clearly exempting material “for a bona

fide scientific or medical purpose, or for an educational

or cultural purpose for a bona fide school, museum or

library.” Mass. Gen. Laws ch. 272, sec. 29A. Any danger

of this particular statute being applied in the future to

socially valuable speech rising to the level of political

speech appears to be minimal. Nor is there any claim

‘hat defendant Oakes’ speech itself constituted socially

valuable activity rising to the level of political or even

commercial speech. His defense at trial consisted of deny-

ing he took the photographs. Tr. at 57-61.

This case does not present one of the difficult marginal

fact situations where the speech in question can plausibly

be construed as either political speech or child pornog-

raphy. Amici do not request the Court to lower its vigil-

ance in preserving our First Amendment freedoms in the

context of socially valuable political speech. The Court

has already established guidance for the lower courts in

recognizing that the degree of overbreadth must be exam-

ined in the context of the social value of the speech, and

that child pornography is “in its rightful place near the

bottom of this hierarchy.” New York v. Ferber, supra

at 781 (Stevens, J., concurring).

The lower court erred in treating the child pornogra-

phy statute as if it were political speech protected by the

highest levels of judicially required congruence. There is

no danger that the Massachusetts statute is or might be

in the future used to erode protections for socially valu-

able speech because the statute contains an explicit ex-

emption for educational, cultural, medical and scientific

materials. Where there is a very slight possibility of

potentially overbroad future applications, it does not re-

quire invalidation of the entire statute on its face in the

context of child pornography.

III. Facial Invalidation Of A Child Pornography Statute

Is Inappropriate Where Alternative Narrowing Con-

structions Could Cure Whatever Marginal Overbreadth

Might Be Imagined.

The third error in the application of federal over-

breadth doctrine in the case at bar occurs because the

lower court struck down the entire child pornography

statute on its face. No prosecutions against pedophiles

can, at this point, proceed in Massachusetts. A limiting

construction of the Massachusetts statute should have

been employed by the state court. However, where the

lower court has fallen into plain error by endorsing a

broad reading of the statute, it has fallen afoul of the

well-established principle that statutes will be interpreted

to avoid constitutional difficulties. Frisby v. Schultz, 56

U.S.L.W. 4785, 4788 (U.S. June 27, 1988). This Court

should construe the statute more narrowly to avoid strik-

ing the entire statute because of an imaginary overbroad

application to pre-pubertal children in a non-sexual con-

text.° In Frisby, supra, the Court narrowly construed

an ordinance prohibiting residential picketing by inter-

5 Nor should federalism concerns preclude a narrowing construc-

tion where a state court has misapplied federal overbreadth doc-

trine. “While the construction that a state court gives a state

statute is not a matter subject to our review .. . this Court is the

final arbiter of whether the Federal Constitution necessitated the

invalidation of a state law. ... [W]e may correct erroneous applica-

tions of the Constitution that erk on the side of an overly broad

reading of our doctrines and precedents as well as state-court deci-

sions giving the Constitution too little shrift.” New York v. Ferber,

458 U.S. at 767.

preting the statute as prohibiting only picketing focused

on a single residence and as not containing an exception

for labor picketing despite the lower courts’ broader

reading. As Justice O’Connor observed, a lower court

interpretation is not necessarily binding on the Supreme

Court. “To the extent they endorsed a broad reading of

the ordinance, the lower courts ran afoul of the well-

established principle that statutes will be interpreted to

avoid constitutional difficulties.” Frisby v. Schultz, 56

U.S.L.W. at 4788. If the Court is willing to more nar-

rowly construe a statute regulating political speech, as in

Frisby, then surely a narrowing construction should be

entertained as an alternative to facial invalidation in

the child pornography context. In the case before us, the

Court could more narrowly construe the pre-pubertal

nudity provision as banning only photographs taken,

saved or used in a sexual context if the Court deems the

hypothetical situation as serious enough to constitute sub-

stantial overbreadth.

The facts of the actual case before the Court, however,

do not even involve a pre-pubertal child. The Oakes case

involves a thirteen year old, post-pubertal child who was

tricked into displaying her body nude in a sexually pro-

vocative manner for the gratification of her stepfather.

The portion of the Massachusetts child pornography

statute which applies directly to the Oakes prosecution

is found in Mass. Gen. Laws Ann. ch. 272, sec. 31 ( West

Supp. 1987), defining nudity in a post-pubertal child as

displaying the genitals, pubic areas or the female child’s

breast below a point immediately above the top of the

areola. Thus even if photographing a pre-pubertal child

nude in a non-sexual context might hypothetically con-

stitute an overbroad application of the statute, the ac-

tual application in Oakes involved a separate portion of

the child pornography statute which protects adolescent

children. It requires no extension of New York v. Ferber,

supra, to find that photographs of a child’s female breasts

and genitals need not be obscene under Miller v. Cali-

fornia, supra, standards. Post-pubescent child nudity

need not be “portrayed in a patently offensive manner”

involving lewd exhibition of the genitals. New York v.

Ferber, 458 U.S. at 761, 764. While a normal family

album might contain occasional photos of naked toddlers,

it is most unlikely a family album would contain nude

photos of adolescent children romping at the beach.

The Court could, if it deems potential overbroad appli-

cations substantial and presenting a realistic danger

to free speech, construe the Massachusetts child pornog-

raphy statute more narrowly on either (or both) of two

theories. The Court could limit application to nude pho-

tography in a sexual context, requiring factual evidence

regarding the production, saving and use of the partic-

ular photos in question. This construction has the ad-

vantage of support from the statutory language itself

and focuses on the actual and compelling legislative pur-

pose to prevent child sexual exploitation. It has the ad-

ditional advantage of focusing the efforts of law enforce-

ment officials, judges and juries on externally verifiable

factual evidence rather than subjective assessments of

the appeal or lack of appeal to the prurient interest. Or,

the Court could construe the ban on nude photographs as

limited to adolescent nudity, and limit application of the

pre-pubertal protections to acts which represent sexual

conduct. This construction would save three of the four

measures in sec. 29A directed to protecting children.

Adolescent sexual conduct, adolescent nudity, and pre-

pubescent sexual conduct could still be protected. Only

pre-adolescent nudity would present a danger of chilling

third parties’ free speech under this construction.

Where, as here, the statute itself contains a severabil-

ity clause,® the statute should not be declared unconstitu-

tional in its entirety “unless the invalid provisions are

® Mass. Gen. Laws Ann. ch. 604 sec. 8 amended the child pornogra-

phy statutes to provide a severability clause in 1982.

Oe os —. ee

unseverable and it cannot reasonably be believed that the

legislature would have passed the one without the other,

or unless the elimination of the invalid part would render

the remainder of the act incapable of accomplishing the

legislative purposes.” Brockett v. Spokane Arcades, Inc.,

472 U.S. at 506 and 506 n. 15.7 Even if the Massachu-

setts legislature is barred from protecting pre-pubertal

children from nude pornography, the protection of pre-

pubertal children from production of pornography de-

picting sexual conduct and the protection of adolescent

children should be allowed.

The well established principle that statutes will be in-

terpreted to avoid constitutional difficulties is funda-

mental to post-1937 federal constitutional law. Justice

Brandeis’ famous concurring opinion in Ashwander v.

TVA, 297 U.S. 288, 346-348 (1936), sets forth the basic

tenents of judicial power. Two of those factors are ap-

plicable in the instant case.

[3.] The Court will not ‘formulate a rule of consti-

tutional law broader than is required by the precise

facts to which it is to be applied.’ [4.] The Court

will not pass upon a constitutional question although

properly presented by the record, if there is also

present some other ground upon which the case may

be disposed of. This rule has found most varied

application. Thus, if a case can be decided on either

of two grounds, one involving a constitutional ques-

tion, the other a question of statutory construction

= _— law, the Court will decide only the latter.

The precise facts of the Oakes case do not require any

present decision on the question of whether nude photo-

7 Massachusetts caselaw also favors a narrowing construction

where possible to save statutes. Commonwealth v. Lammi, 386 Mass.

299, 301 (1982); Commonwealth v. O'Neil, 233 Mass. 535, 540-541

(1919). Severability is also favored over facial invalidation. Mayor

of Boston v. Treasurer, 384 Mass. 718 (1981).

graphs of pre-pubertal children in a non-sexual context

violate the First Amendment, since Oakes involves a post-

pubertal child in a sexual context. Whatever slight possi-

bility exists for future overbroad applications can and

should be cured short of facial invalidation of the statute

by a narrowing construction.

The Massachusetts Society for Prevention of Cruelty

to Children and the many other child protective service

groups which have joined in this amicus brief urge the

Court to consider the effect of facial invalidation on all

the children of Massachusetts, as well as children in other

states. Amici do not believe that there is any realistic

danger of overbroad prosecutions of innocent parents

photographing their toddlers, nor do amici believe that

any reasonable parents would be chilled in customary

photography of their children. The experience of the

child protective agencies has not indicated that the elected

officials vested with prosecutorial discretion in Massa-

chusetts have engaged in a pattern of harassing innocent

parents with prosecutions for child pornography. Amici

urge the Court to uphold the Massachusetts child pornog-

raphy statute on the grounds that any overbreadth is

hypothetical, not substantial, and does not present any

realistic danger to free speech.

Amici also urge the Court to consider the effect of

facial invalidation on the Oakes child herself. This child

believed strongly enough that her stepfather’s actions

were improper sexual exploitation to endure the pain and

humiliation of publicity and testimony. Any adolescent

child is normally embarrassed about his or her develop-

ing body. She has endured having her bodily develop-

ments repeatedly exposed in three contexts: for her step-

father’s gratification, in courtroom testimony and in all

the various publicity that has surrounded this case both

locally and through defendant Oakes’ appearances on a

national television talk show. The niceties of overbreadth

doctrine will in all likelihood not be understood by the

Oakes’ child or other children subjected to sexual exploi-

tation. Amici urge the Court to make it clear that the

highest law of our civilization does not condone or ratify

sexual photography of children.

For all these reasons, amici hope the Court will uphold

the Massachusetts child pornography statute and defer

any decision on non-sexual pre-pubertal photos until such

a situation is actually presented, if ever. If the Court

is unable to uphold the statute in its entirety because the

Court believes a genuine danger to free speech exists,

amici request that the Court narrow the construction of

the statute to save whatever portions may be found con-

stitutional. The importance of a saving construction lies

at the heart of the concern for amici who provide pro-

tection, counselling and services to many troubled fam-

ilies. Some measure of legal protection establishing

limits on the sexual exploitation of children is centrally

important to all the children of Massachusetts. Facial

invalidation leaves even the hardest-core child pornog-

raphy victims without protection, while a narrowing con-

struction could save at ‘east some of these children.

The third alternative, referral to the state court on the

issue of a narrowing construction or severability, is the

least desirable result short of actual facial invalidation

in the opinion of amici. It will continue to leave the

children of Massachusetts unprotected from child pornog-

raphy for the lengthy period of appellate review. Cur-

rently our children have been without legal protection

since February 1, 1988, and extending that period by

even one additional year is very serious in the eyes of

amici. The child pornography industry is a lucrative

business and prolonged periods of legal limbo raise the

possibility that commercial child pornographers may at-

tempt to profit from the loophole at the expense of our

children.

CONCLUSION

For the foregoing reasons, the judgment of the Su-

preme Judicial Court should be reversed and the convic-

tion should be reinstated.

Respectfully submitted,

ELIZABETH K. SPAHN *

154 Stuart Street

Boston, MA 02116

(617) 451-0010

Attorney for

Massachusetts Society for

Prevention of Cruelty

to Children

* Counsel of Record

Dated July 21, 1988

APPENDIX

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APPENDIX

DESCRIPTION OF AMICI ORGANIZATIONS

MASSACHUSETTS SOCIETY FOR PREVENTION

OF CRUELTY TO CHILDREN (MSPCC) was founded

in 1878 as a statewide agency dedicated to improving

family life and protecting children. MSPCC has a staff

of 200 peopie and serves almost 10,000 clients annually,

many of whom have been sexually abused. MSPCC pro-

vides a range of direct treatment services for sexual

abuse victims and their families. MSPCC’s experience is

that child pornography perpetuates the sexual victimiza-

tion of children with long term emotional consequences

for the children exploited.

National Organizations

AMERICAN HUMANE ASSOCIATION for more than

112 years has led national efforts to protect children from

abuse and neglect. As a nationwide association of agen-

cies and individuals, AHA through its Children’s Division

provides training for health, law enforcement and legal

professionals, brings expert assistance to state child pro-

tective programs, publishes research, promotes national

standards and maintains a national data base on child

abuse and neglect. .

CHILD WELFARE LEAGUE OF AMERICA is a na-

tional organization comprised of 450 leading child wel-

fare agencies in the United States and Canada with 1200

affiliates in 27 state associations. Founded in 1910 at

the request of President Theodore Roosevelt, the Child

Welfare League is the only privately supported organi-

zation in North America solely devoted to improving

services for deprived, neglected and abused children

whose membership includes both voluntary and public,

religious and nonsectarian agencies,

State Organizations

BOSTON CHILDREN’S SERVICE ASSOCIATION

is the successor to New England’s oldest private chari-

table organization founded in 1799. In 1987 it served

more than 2,500 children and families, many of whom

had experienced child sexual abuse and child pornog-

raphy. its experience has shown that child pornography

can cause lasting harm to children.

BRIGHTSIDE FOR FAMILIES AND CHILDREN

based in Springfield, Mass., offers therapeutic treatment

. for children and their families in New England and New

York. Founded in 1881, Brightside employs 160 people

and served 4,830 clients in 1987.

CAMBRIDGE FAMILY AND CHILDREN’S SERV-

ICE founded in 1873, provides counselling, adoption,

mediation, support, training, rehabilitation and preven-

tion programs. It has a 40 member professional staff

and 50 trained volunteers.

CATHOLIC CHARITIES—ARCHDIOCESE OF BOS-

TON founded in 1903, is the major social service agency

of the Roman Catholic Church in the greater Boston

area. Catholic Charities serves people of all faiths and

provides a wide range of social services to children. In

1987 more than 3,500 children were served through pro-

tective services, foster care and day care programs.

COMMUNITY COUNSELLING CENTER OF

BLACKSTONE VALLEY, INC. is a community based

agency providing substance abuse treatment, mental

health and social services in the 15 towns of the Black-

stone Valley in Massachusetts. CCC has 55 staff and

serves 1,500 clients annually. Children and their fam-

ilies are the primary client population, and CCC pro-

vides treatment for victims of sexual abuse.

COMMITTEE FOR WISPANIC CHILDREN AND

FAMILIES, INC. is a city wide agency in New York

City. CHCF provides cultural awareness training courses

for social service providers working with Hispanic chil-

dren and families, provides training in the Hispanic com-

munity on child abuse and neglect and provides policy

development resources.

DIMOCK COMMUNITY HEALTH CENTER founded

115 years ago, it based in Roxbury, Massachusetts and

provides comprehensive ambulatory health care services

to the poor and near poor. It is one of the largest health

centers in Boston and has a model health vocational

training program with over a dozen independently oper-

ated health programs.

FAMILY CONTINUITY PROGRAMS, INC. offers a

wide range of family treatment services with six offices

throughout Massachusetts employing 80 full time staff.

The agency has experienced ever increasing incidents of

child sexual abuse cases since 1985.

FAMILY SERVICE OF GREATER BOSTON founded

in 1835, is a voluntary human service organization pro-

viding sexual abuse treatment, drug and alcohol rehabili-

tation, advocacy programs, a licensed mental health clinic

and a certified home health agency.

THE HARBOR SCHOOLS, INC. provides services to

severely disturbed children and their families including

crisis and ongoing family intervention, individuai and

group psychotherapy, job training, special education and

alternative family placement.

ITALIAN HOME FOR CHILDREN is a long term

residential treatment facility providing services to emo-

tionally disturbed children of all races from Massachu-

setts and bordering New England states. Many of the

50 children between 5 and 13 years old accepted annu-

ally into its residential and emergency shelter programs

have suffered sexual abuse. The Italian Home’s experi-

ence is that child pornography causes long term emotional

disturbance in most cases.

KEY PROGRAM, INC. serves troubled adolescents

statewide with a staff of 300 serving 3,200 adolescents

annually in residential and non-residential settings. Many

of KEY’s clients have a history of sexual abuse, includ-

ing use of adolescents in pornographic material.

MASSACHUSETTS ASSOCIATION FOR MENTAL

HEALTH, INC. founded in 1913 has chapters through-

out the Commonwealth. MAMH is concerned with the

growing number of sexually related child abuse cases

and. has found that child pornography is exploitation of

defenseless minors.

MASSACHUSETTS COUNCIL OF HUMAN SERV-

ICE PROVIDERS represents almost 600 nonprofit agen-

cies providing a variety of human services. It is con-

cerned with the development of sound, progressive social

policies and works with the executive department, state

legislature, state agencies, advocacy groups and philan-

thropic organizations.

NEW BEDFORD CHILD AND FAMILY SERVICE

founded in 1843 serves southeastern Massachusetts, pro-

viding protective service to children who are victims of

sexual abuse, their siblings and to perpetrators of child

sexual abuse, in addition to other programs. It serves

about 5,800 clients annually with a staff of 100.

NEW ENGLAND HOME FOR LITTLE WANDER-

ERS founded in 1865 provides services to severely troub-

led children and their families, including residential

treatment, day treatment, foster family placement and

counselling. It has a staff of over 250 serving about 1,000

children annually, many of whom have been sexually

abused. Child pornography has proven to be a destructive

experience in the experience of the agency.

PARENTS ANONYMOUS OF MASSACHUSETTS

assists parents in breaking the cycle of child abuse. It is

a self-help organization providing safe, supportive weekly

AO see ee

meetings where parents under. stress can discuss their

problems. It serves over 2,000 people annually.

SPRINGFIELD HOME FOR FRIENDLESS WOMEN

AND CHILDREN, CHILDREN’S STUDY HOME based

in Springfield, Massachusetts is a multi-service agency

founded in 1865 serving about 600 families annually with

a staff of 100. It provides educational, day and residen-

tial treatment, therapy, and protective services to chil-

dren.

STEVENS—CHILDREN’S HOME, INC. founded in

the 1930s provides residential treatment for 30 emotion-

ally disturbed boys experiencing serious behavioral prob-

lems. Over 33% of the boys are known victims of sexual

abuse and have themselves become the sexual abusers of

younger children. Child pornography clearly contributes

to this serious problem in the experience of the agency.

TRAVELERS AID SOCIETY OF BOSTON, INC.

serves the needs of a mobile population including run-

away children, homeless, unemployed, deinstitutionalized

people, refugees, abused women and tourists. TAS served

59,481 people in 1987 and provided counselling or emer-

gency assistance to 4,930 people.

UNITED WAY OF MASSACHUSETTS BAY, INC.

founded in 1935 conducts an annual volunteer fund rais-

ing drive which provides financial support to over 200

human service agencies. United Way agencies serve 1.7

million people in 81 cities and towns.

WAYSIDE, INC. operates eight programs serving ado-

lescent children including an emergency shelter, group

home and school, a day treatment program and transi-

tional apartment program. A large percentage of chil-

dren served have a history of sexual abuse which con-

tributed to their inability to live and function in the

community. Child pornography is child abuse in Way-

side’s experience.

WOMEN’S ALLIANCE AGAINST PORNOGRAPHY,

Cambridge chapter, provides public education about the

harms of pornography and advocates legislative reform

efforts to address this abuse.

WOMEN AND CHILDREN’S HEALTH ASSOCI-

ATES of Palmer, Alaska, provides services including pre-

vention and early intervention for family violence and

child abuse, and has provided leadership for statewide

effort to prevent child sexual abuse.

WORCESTER CHILDREN’S FRIEND SOCIETY

founded in 1849 provides mental health and advocacy

services to about 1,000 children with a staff of 30. Over

35% of its clients are victims of physical or sexual abuse.

YOUTH OPPORTUNITIES UNLIMITED, INC.

serves about 2,000 adolescent children with a staff of 60

annually providing residential treatment, counselling,

special education and advocacy programs. Its experience

with behaviorally disturbed adolescents demonstrates the

myriad of problems occurring when children are sexually

victimized.

YOUTH OPPORTUNITIES UPHELD, INC. served

1,348 children and their families with 90 staff providing

preventative and rehabilitative social, psychological, ed-

ucational and vocational services. The majority of

Y.O.U.’s clients are victims of sexual abuse and it is their

belief that child pornography contributes to this problem.

a ee

a te ew me = ae te,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.