l crisp white from the office of the state a public defender on behalf of gregory ramos mr rahman's conviction for child for tiger free by a sex offender must be vacated with a statute as both facially unconstitutional a take a digital image of a child without the consent of the parents or guardian for taking a surreptitious non pornographic not an obscene photograph of a teenage boy with a cellphone in a public place mr owens was sentenced to a prison term of five years the statute is overbroad because it criminalizes a wide range of otherwise protected expression vailable to other citizens specifically the statute prescribes the st amendment right to take not obscene  photographed pornographic photographs of children which had been held to be tracked by the st amendment the trial court here correctly determined that the statute was subject to strict scrutiny review because the photo in question was not content neutral and content based regulations are presumptively invalid to satisfy strict scrutiny review a statute must be the least restrictive means of achieving a compelling state interest like the court in open in wisconsin the circuit here recognize the undeniable compelling state interest in protecting children and of course the protection of children is a legitimate interest but that does not end the inquiry the statute not only must achieve that state interest but it must be the least restrictive means of doing so unlike the court below the court in oatman correctly concluded that the similar wisconsin statute issue does little if anything to further that interest and indeed the altman court found that the statute there might actually cause more harm than good by requiring sex offenders to approach a child and ask them questions about their parents in order to obtain their in the case of oatman written consent although the statute here differs from that thus the concerns of the statute might do more harm than good as expressed by the open court are neither eliminated nor even significantly reduced by the statute more importantly the statute here like the wisconsin state u does little if anything to further the interest of protecting children nor does the statute here pass constitutional muster by limiting its application to child sex offenders like open the connection to a compelling state interest here does student become stronger merely because the number of those who lose their st amendment protections is reduced moreover the elimination of an individual's expression rights based on status is precisely the st amendment was ratified protections are not required for protect the popular expression it is unpopular expression or expression by those society deems unpopular that are most in need of protection in ashcroft versus free speech coalition the us supreme court has concluded that children are not harmed by not obscene non pornographic photographs that are taken in public places nevertheless judge morris below declared that conduct which might be innocent  harmless for the general population can cause actual harm and child sex offenders and gage and judge morris specifically cited using photography as a guys for grooming potential victims but not only is that link precisely the type of tenuous potential harm that courts have found to be insignificant or insufficient rather for the restricting st amendment protections but the concern expressed by the judge using photography as a guide for grooming which is is his words actually as a separate offense laws exist that describe the harm imagined by the trial court such that it is not necessary to further restrict st the member protections indeed the cases bar involves a surreptitious photograph which was neither pornographic nor involved no contact with the child at all and the judge even remarked that he found it quote strange that a defendant would take the pictures here and ask counsel why quote his client takes those took photos in fact the judge characterized the issue as use of a photograph or a lewd or pornographic purpose which is only and which is not only is not the offense charged here but it suggests that he sought to punish thoughtcrime that reviewing courts have consistently rejected and ashcroft the supreme court held that government may not prohibit speech because it increases the chance of an unlawful act would be committed at some indefinite future time and that photographs were neither obscene or pornographic children no that's correct i don't there's no intent to suppress photographs of minor children generally speaking is that correct other than their own correct so the subject of the content why isn't that content neutral that legislature appears to be concerned about how the picture was acquired who acquired it and for what purpose the fact that a child is in the picture it's not generally prohibiting that so i don't stand with this isn't that content  intermediary scrutiny intermediates what's it's not content neutral because the pictures serving is the basis for the defendant's conviction and if the sun were not in this particular picture it wouldn't be it's the presence of the under age jalen this case that makes that makes that picture prescribe you know it's a president who's taking the picture and under what circumstances isn't it i'm curious how do you distinguish this case in the arguments a state is making from the supreme court's decision in austin i mean the supreme court in austin upheld the so called revenge porn statute and they held that they were concerned about the manner of the regulation things of that nature that we're talking about i mean somebody could send a picture out with consent and it wouldn't be illegal but if you acquire it and send it out in a manner that violates the statute it would parent why why is that so much different than austin because there is no inherent harm to that harm that the court below or in fact seem to be concerned about was not the harm of there being an actual photograph tha t there would be possibly contact with with the minor or that it would be used in some way to lure them lighter things that we get from a statute for an out the actual photograph taken of the minor although creepy i don't think anybody's denying that but whether or not that can be restricted by the st one i meant simply because we don't like what that sex offender by thief thanking i don't think you know meets the test whereby austin was the actual act justice president you have any questions i do i would like to follow up on justice clinton's last question because i'm concerned that everybody missed is for discussion purposes a threshold question whether this photograph if you will is speech in the st place because and there's no question that photographs videos and certain contexts can be speech my question is are they always speech and what i have in mind is this i believe that is established in order to be protected under the  amendment images have to communicate some idea my question to you is do you st of all do you agree with that principle and secondly if you do what idea was this photograph communicating or was it purely for recreational  purposes i do do agree with the general proposition that photographs not obscene photographs are you now pornographic photographs are protected by the st amendment they must convey an idea perhaps i think that's a very slippery slope trying to determine what's in the creator's head i don't think i think the cases of generally disfavor that sort of approach the problem here is this actually was disseminated it was disseminated on a message board i don't for that is not obscene again i mean that would be a clearly different situation of course if it were but i'm not of seen photographs taken public that was worth the two a message for i don't know what that was what the intent of that was but it certainly was founded by the creator by the defendant here to express something so he did then and took a picture of a rock and posted it on a match message board the mere fact that it's posted your position would be that it makes it somehow communicative in nature well science that rock is plymouth rock if that's all if that defendant estate because of iraq and he's posting it for some reason i don't know what plenty of artistic works that are posted that i think a lot of us might say i don't understand what this person is trying to convey if anything but there's a one billion dollar industry based on that so i don't think it's the position of the court in bad faith situation protection under the st amendment the plaintiff must show that he has asked a message to be communicated in the audience to receive the message regardless of the medium in which the message is expressed and i just would like some articulate for me what the message was in photographing a child in this case what was it purely perec creational purposes or did it have some other purpose what was the message with justice brennan suggestion that there be supplemental briefing on this point that justice brennan discussed regarding whether or not the photograph  in question was in fact an exercise in speech or was otherwise protected under the st amendment which if it  isn't appropriate communication then it's a threshold issue that may dispose of the case and so we as a court are ordering the parties to  file supplementing supplemental briefing on this point the opponent's lawyer mr white has ten days and mr friedman has five days to respond and mr white is five days to respond to reply to the response relative to question was  don't really have any further questions i think the other panelist covered my issues and therefore i will not be redundant thank you mr white you'll have an opportunity to make rebuttal thank you type must be the state's st resort to ward off the serious harm that sexual crimes and and i believe that with this purpose in mind that the legislature enacted the statute did issue a level twenty four dollars which seeks to prohibit those convicted of child sex offenses from knowingly photographing a minor without parental consent and in this case the statute fulfilled its intended purpose briefly i'd like to address the standard peer review and i believe under people the austin which came out subsequent to open as well as north carolina be packing ham and people be menace it's clear that this court should apply intermediate scrutiny in its review of the statute in austin the only supreme court noted that regulation that serves purpose is unrelated to the content of the expression is deemed neutral even if it has an incidental effect on some speakers or messages but not others in this case the statutes regulatory purpose seeking to protect children from recidivist child sex offenders unrelated to the content of the photo while often regulated the manner that one can disseminate another private sexual images here the statute regulates the manner with which a convicted child sex offender may photograph images of children and both cases the regulatory purpose of the statutes was unrelated to the actual content of the photo and therefore the content of this content neutral and should be subject to intermediate scrutiny getting to the purpose that  the question of the purpose of the statute that sought to address the threat of recidivism posed by those previously convicted of child sex offenses serves a significant or compelling state interest which has been recognized in multiple court cases the issue here dispute here does not limit the child sex offenders ability to photograph a minor and therefore it burdens no speech to minimize or impose a minimal time and place and manner restrictions on how such individuals may engaging in activity the impact is limited to only  certain situations where there is either consensus in practical work parents of not consent i believe that the section is narrowly tailored to criminalize no more than the knowing photograph photography of children without parental consent by individuals with an in interpretation of the language of a child in to be read and can be construed that the child would be the subject of the photograph where is an open it had much more broad language that it was any representation of a child and that and language is much more broad secondly that the statute here the issue in open or one of the issues in all of them was that the statute there applied to all sex offenders regardless if there was any evidence or any connection to a crime our offense involving children here the statute has removed that concern by limiting it only to those individuals who have been previously convicted of sex offenses against children and finally the consent provision here  sensually removes any burden to the extent that the photograph is considered speech or expression protected expression the consent provision does removes all burden to this to the speech by allowing these position that the supreme court's decision in austin in the last in the surgeon that you alluded to earlier controls a result here how does austin apply here i believe that austin which was decided after altman does control here the if you simply replace the the content in the the analysis of the purely private sexual images in oatman that the goal of that statute was the manner there was to regulate the manner in which those items those images were disseminated and you replace it with the child photographed subject in this case the statute does the exact same thing seeks the manner there are i'm sorry seeks to regulate the manner in which people certain have any questions like mr friedland in austin wasn't one of the primary concerns of the court the expectation of privacy that the subject of the videos or photos  expected yes we don't have that concern in this particular case we we don't have that but we do have the under the perfect behind the statute  in regulating the the manner of which the images are are obtained it's just different we don't have the same concern but we do have the same similar regulatory purpose underpinning the statu very well and then if it following up on the request for additional briefing of both parties could write this down one of the cases that we would like you to look at in terms of understanding  questions mr friedman the miners have an interest in their own privacy i would answer that they do is there a friction or a conflict between a miner's right to privacy versus the statute i don't believe there is because the miners  example than minors privacy interests than exactly what happened in this case that the defendant took a surreptitious picture of the minor and posted on a website and that with descriptions of how you viewed the minor statute furthers both the minor and the parent's right of privacy to prevent their photos from being used either used in grooming or used on a posted on a surreptitious website and and not contacted by people but again that is not with this is there grooming statutes that the that the regulates that the state says is it's not the same concerns the other statute but it's the same regulatory purpose and that this again of course the same regulatory purpose is the protection of children but even under the intermediate standards it's still that nexus is lacking between the taking of a photo and the harm to children or potential harm to children in fact i think this was cited by both parties in different ways but the prime example here would be a picture of a group of children in front of them being or anyplace else on any sort of public image that captures a picture of a child is going to be at least arguably or at least can be prosecuted i know this there's been some limitation in the language of the statute here is  oakland which says that it you know of a child which can be read as the state says but that doesn't mean it has to be read and i think that it also reflects a sort of naivete about modern photography this statute may have better accomplish its stated purpose twenty years ago when you had you know perhaps someone is going to be trolling with this camera and you know attempting to get a picture but now you've got everyone from you know rd grade on has a phone that is capable of taking professional quality pictures they can take a picture of a large group they can zero in out a member of that group and large it you know the taking of the photo itself you could see a group photo that's going to contain many people and one of those people is a child that's going to leave the defendant open to prosecution the focus still seems to be in the state's argument the conduct of taking a photo don't approach children don't you children don website but that's not what this does this is simply taking a photo whether the child doesn't know is about it which in this case or not and there's not a privacy interest of an individual in a public place which was the situation here to take this picture on his smartphone and he'd send it out or disseminated publish it send it to cloud or whatever how would the state find out about this crime unless somebody knew that this individual was a convicted felon  could be turned in by someone who knows them he could be open to forced by blackmail might be a little extreme but you know what that situation where i know you're not supposed to be taking this we see this all the time in the context of  computers and spouses girlfriends boyfriends etc you know sort of saying hey this stuff on this computer that shouldn't be and call the police in fact with the current picture there's a good question as to the records a little a little i'm clear about how exactly anyone this because the picture itself is rather innocuous so i'm not sure that we can really read too much into how you know it may be because he's making you know he's making himself obvious in which case there's a crime for that you know if he's causing a public incident and taking his photo in his with a smartphone and certainly that's going to be times like that's punishable by some other offense but not the actual taking  what do you think the defendant meant by air do know that it was a not obscene non pornographic picture and to read too much more into that is you know when you have to say that because it was the appetite eventually of the files and that precisely what the road i mean certainly preached the i don't think you get any argument there then you know what i'm here and that anyone any nor any parent would be you know sort of probably offended and maybe shocked that there's photos and i think not just not just parents i think you know anyone who's had i have no additional questions just discredit i do know thank you thank you we will take the case under advisement and there will be a order regarding supplemental brief