# Massachusetts v. Oakes/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Scalia
* Dissenting Opinion Brennan
1. As a practical matter, the intervening amendment of the statute moots the overbreadth question in this case. Thus, overbreadth analysis is inappropriate under Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600. The overbreadth doctrine-an exception to the general rule that a person to whom a statute may be constitutionally applied can no longer challenge the statute on the ground that it may be unconstitutionally applied to others-is designed to prevent the chilling of protected expression, which the former version of § 29A cannot do since it has been repealed. That overbreadth was discussed and rejected as a mode of analysis in Bigelow-where there was no need to comment on that issue since the defendant's conviction was reversed on the narrower and alternative ground that the statute was unconstitutional as applied-is evidence that the application of Bigelow does not depend on whether other questions presented will be answered adversely to the defendant. It is not constitutionally offensive to decline to reach Oakes' challenge, since an overbroad statute is not void ab initio but merely voidable. Since the special concern that animates the overbreadth doctrine is no longer present, the doctrine's benefits need not be extended to a defendant whose conduct is not protected. Moreover, the amendment of a state statute pending appeal to eliminate overbreadth is not different, in terms of applying the new law to past conduct, from a state appellate court adopting a limiting construction of a statute to cure overbreadth. This Court has long held in the latter situation that the statute, as construed, may be applied to conduct occurring before the limiting construction. Pp. 581-584.
2. Since the sole issue before this Court has become moot, and a live dispute remains as to whether the former version of § 29A can constitutionally be applied to Oakes, this case is remanded for a determination of that remaining live issue. Pp. 584-585.
Justice SCALIA, joined by Justice BRENNAN, Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS, concluded that the subsequent amendment of § 29A to eliminate the basis for the overbreadth challenge does not eliminate the overbreadth defense. The overbreadth doctrine serves to protect constitutionally legitimate speech not only after an offending statute is enacted, but also when a legislature is contemplating what sort of statute to enact. If no conviction of constitutionally proscribable conduct would be lost, so long as the offending statute was narrowed before the final appeal, legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place. Moreover, while this Court has the power to adopt a rule of law which says that the defendant's acts were lawful because the statute that sought to prohibit them was overbroad and therefore invalid, it does not have the power to pursue the policy underlying that rule by conditioning the defendant's criminal liability on whether, by the time his last appeal is exhausted, letting him challenge the statute might serve to eliminate any First Amendment "chill." Pp. 585-588.
Justice SCALIA, joined by Justice BLACKMUN, also concluded that the case should be remanded for the court below to dispose of the as-applied challenge, since the statute is not impermissibly overbroad. The scope of this statute has already been validated except as to nonpornographic depictions, New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113, and has been narrowed further by statutory exemptions, and any possibly unconstitutional application of it-for example, to artistic depictions not otherwise exempt or to family photographs-is insubstantial judged in relation to the statute's plainly legitimate sweep. Pp. 588-590.
O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and WHITE and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BLACKMUN, J., joined, and in which BRENNAN, MARSHALL, and STEVENS, JJ., joined as to Part I, post, p. 585. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 590.
James M. Shannon, Atty. Gen., Com. of Mass., Judy G. Zeprun, Madelyn F. Wessel, Asst. Attys. Gen., Boston, Mass., for petitioner.
Richard J. Vita, Boston, Mass., for respondent.
Justice O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY join.
This case involves an overbreadth challenge to a Massachusetts criminal statute generally prohibiting adults from posing or exhibiting nude minors for purposes of visual representation or reproduction in any book, magazine, pamphlet, motion picture, photograph, or picture.
* The statute at issue in this case, Mass.Gen.Laws c. 272, § 29A (1986), was enacted in 1982. It provides as follows:
"Whoever with knowledge that a person is a child under eighteen years of age, or whoever while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity or to participate or engage in any live performance or in any act that depicts, describes or represents sexual conduct for purpose of visual representation or reproduction in any book, magazine, pamphlet, motion picture film, photograph, or picture shall be punished by imprisonment 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 thousand dollars nor more than fifty thousand dollars, or by both such a fine and imprisonment.
"It shall be a defense in any prosecution pursuant to this section that such visual representation or reproduction of any posture or exhibition in a state of nudity was produced, processed, published, printed or manufactured for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.
"As used in this section, the term 'performance' shall mean any play, dance or exhibit shown or presented to an audience of one or more persons."
Another statute, Mass.Gen.Laws c. 272, § 31 (1986), defines "nudity" as
"uncovered or less than opaquely covered post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple or the nipple or areola only are covered. In the case of pre-pubertal persons nudity shall mean uncovered or less than opaquely covered pre-pubertal human genitals or pubic area." In 1984, respondent Douglas Oakes took approximately 10 color photographs of his partially nude and physically mature 14-year-old stepdaughter, L.S., who at the time was attending modeling school. Tr. 22-30. The photographs depict L.S. sitting, lying, and reclining on top of a bar, clad only in a red and white striped bikini panty and a red scarf. The scarf does not cover L.S.'s breasts, which are fully exposed in all the photographs. The dissent below described the photographs as "sexually provocative photographs of the type frequently found in magazines displayed by storekeepers in sealed cellophane wrappers." 401 Mass. 602, 606, 518 N.E.2d 836, 838 (1988). See also Brief for Law and Humanities Institute as Amicus Curiae 47 (referring to the photographs as "pin-up" art).
Oakes was indicted and tried for violating § 29A. The jury returned a general verdict of guilty, and Oakes was sentenced to 10 years' imprisonment. Because the jury was not instructed on the "sexual conduct" portion of § 29A, Tr. 101-104, its verdict rested on a finding that Oakes "hire[d], coerce[d], solicit[ed] or entice[d], employ[ed], procure[d], use[d], cause[d], encourage[d], or knowingly permit[ted]" L.S. to "pose or be exhibited in a state of nudity." The acts proscribed by § 29A are listed disjunctively, so it is impossible to ascertain which of those acts the jury concluded Oakes had committed. The jury was instructed on the exemptions set forth in § 29A, Tr. 104, but its guilty verdict indicates that the exemptions were found to be inapplicable.
A divided Massachusetts Supreme Judicial Court reversed Oakes' conviction. The majority first held that Oakes' posing of L.S. was speech for First Amendment purposes because it could not "fairly be isolated" from the "expressive process of taking her picture." 401 Mass., at 604, 518 N.E.2d, at 837. Without addressing whether § 29A could be constitutionally applied to Oakes, the majority struck down the statute as substantially overbroad under the First Amendment. The majority concluded that § 29A "criminalize[d] conduct that virtually every person would regard as lawful," and would make "a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool." Id., at 605, 518 N.E.2d, at 838. The dissent argued that Oakes' conduct did not constitute speech for First Amendment purposes: "Soliciting, causing, or encouraging, or permitting a minor to pose for photographs is no more speech than is setting a house afire in order to photograph a burning house." Id., at 610, 518 N.E.2d, at 841. The dissent also argued that even if the "nudity" portion of § 29A was overbroad, that portion should have been severed from the remainder of the statute. Id., at 611, n. 4, 518 N.E.2d, at 841, n. 4.
We granted certiorari to review the decision of the Massachusetts Supreme Judicial Court, 486 U.S. 1022, 108 S.Ct. 1994, 100 L.Ed.2d 226 (1988), and now vacate and remand.
The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-504, 105 S.Ct. 2794, 2801-2802, 86 L.Ed.2d 394 (1985). See generally Monaghan, Overbreadth, 1981 S.Ct. Rev. 1. The doctrine is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980). Overbreadth doctrine has wide-ranging effects, for a statute found to be substantially overbroad is subject to facial invalidation. We have therefore referred to overbreadth as "manifestl[y] strong medicine" that is employed "sparingly, and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).
We have addressed overbreadth only where its effect might be salutary. In Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), the defendant argued that the criminal statute under which he was convicted was overbroad. After the defendant was convicted, the statute was amended. The amendment eliminated any possibility that the statute's former version would "be applied again to [the defendant] or [would] chill the rights of others." Id., at 817-818, 95 S.Ct., at 2230. Because, "[a]s a practical matter," the question of the statute's "overbreadth ha[d] become moot for the future," we declined to "rest our decision on overbreadth," choosing instead to consider whether the former version of the statute had been constitutionally applied to the defendant. Id., at 818, 95 S.Ct., at 2230.
In our view, Bigelow stands for the proposition that overbreadth analysis is inappropriate if the statute being challenged has been amended or repealed. The statute in Bigelow was challenged on both overbreadth and as-applied grounds. There was no need for any comment on the overbreadth challenge, as the defendant's conviction could have been-and indeed was-reversed on a narrower and alternative ground, i.e., that the statute was unconstitutional as applied. See id., at 829, 95 S.Ct., at 2236. That overbreadth was discussed and rejected as a mode of analysis is, we think, evidence that application of Bigelow does not depend on whether other questions presented will be answered adversely to the defendant. Indeed, the Bigelow overbreadth analysis appears to have been based on the argument made by the State that the amendment of the statute being challenged eliminated the "justification for the application of the overbreadth doctrine." Brief for Appellee in Bigelow v. Virginia, O.T.1974, No. 73-1309, p. 19, n. 10.
The procedural posture of the overbreadth question in this case is indistinguishable from that in Bigelow. After we granted certiorari, § 29A was amended. See 1988 Mass.Acts, ch. 226. The current version of § 29A, which is set forth in the margin, adds a "lascivious intent" requirement to the "nudity" portion, but not the "sexual conduct" portion, of the former version of § 29A. In addition, the current version of § 29A contains no exemptions. Because it has been repealed, the former version of § 29A cannot chill protected expression in the future. Thus, as in Bigelow, the over- breadth question in this case has become moot as a practical matter, and we do not address it.
There is nothing constitutionally offensive about declining to reach Oakes' overbreadth challenge. Overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression. An overbroad statute is not void ab initio, but rather voidable, subject to invalidation notwithstanding the defendant's unprotected conduct out of solicitude to the First Amendment rights of parties not before the court. Because the special concern that animates the overbreadth doctrine is no longer present after the amendment or repeal of the challenged statute, we need not extend the benefits of the doctrine to a defendant whose conduct is not protected. See Pope v. Illinois, 481 U.S. 497, 501-502, 107 S.Ct. 1918, 1921-1922, 95 L.Ed.2d 439 (1987) ("Facial invalidation" of a repealed statute "would not serve the purpose of preventing future prosecutions under a constitutionally defective standard"). Cf. Upper Midwest Booksellers Assn. v. Minneapolis, 602 F.Supp. 1361, 1369 (Minn.) (amendment of ordinance render d overbreadth challenge moot, but no conviction involved), aff'd, 780 F.2d 1389 (CA8 1985). We also note that the amendment of a statute pending appeal to eliminate overbreadth is not different, in terms of applying the new law to past conduct, from a state appellate court adopting a limiting construction of a statute to cure overbreadth. We have long held that in such situations the statute, as construed, "may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants." Dombrowski v. Pfister, 380 U.S. 479, 491, n. 7, 85 S.Ct. 1116, 1123, n. 7, 14 L.Ed.2d 22 (1965) (citations omitted). See also Broadrick v. Oklahoma, 413 U.S., at 613, 93 S.Ct., at 2916 ("Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute").
Massachusetts has not asked us to consider Oakes' as-applied challenge to the former version of § 29A in its petition for certiorari, and we took the case to decide the overbreadth question alone. When the sole question on which we granted certiorari has become moot, our usual course, in cases coming to us from state courts when part of the dispute remains alive, is to vacate the judgment below and remand for further proceedings. See DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). We have dismissed state court cases rather than vacate and remand them, but only in situations where no state or federal claim remained once the particular claim before us became moot, thereby making a remand unnecessary. See Attorney General of New Jersey v. First Family Mortgage Corp. of Florida, 487 U.S. 1213, 108 S.Ct. 2863, 101 L.Ed.2d 899 (1988) (underlying mortgage foreclosure dispute ended because debt was satisfied); Michigan v. Shabaz, 478 U.S. 1017, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986) (respondent died); Tiverton Board of License Comm'rs v. Pastore, 469 U.S. 238, 105 S.Ct. 685, 83 L.Ed.2d 618 (1985) (respondent went out of business and no longer had any claim to press); Aikens v. California, 406 U.S. 813, 92 S.Ct. 1931, 32 L.Ed.2d 511 (1972) (petitioner obtained complete relief under state constitution before federal constitutional claim was decided); Ditson v. California, 372 U.S. 933, 83 S.Ct. 885, 9 L.Ed.2d 769 (1963) (petitioner executed before petition for certiorari was acted upon). Here, a live dispute remains as to whether the former version of § 29A can constitutionally be applied to Oakes. Thus, we vacate the judgment below and remand for further proceedings.
Vacated and remanded.

## Notes

* ↑ For background on the enactment of § 29A, see Boston Globe, June 14, 1982, p. 17, col. 1; Boston Globe, July 21, 1982, p. 17, col. 2.
* ↑ The current version of § 29A, codified at Mass.Gen.Laws c. 272, § 29A (Supp.1988), provides:
"(a) Whoever, either with knowledge that a person is a child under eighteen years or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, and with lascivious intent, hires, coerces, solicits, or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment 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 thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
"(b) Whoever, either with knowledge that a person is a child under eighteen years of age or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to participate or engage in any act that depicts, describes, or represents sexual conduct for the purpose of representation or reproduction in any visual material, or to engage in any live performance involving sexual conduct, shall be punished by imprisonment 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 thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
"(c) In a prosecution under this section, a minor shall be deemed incapable of consenting to any conduct of the defendant for which said defendant is being prosecuted.
"(d) For purposes of this section, the determination whether the person in any visual material prohibited hereunder is under eighteen years of age may be made by the personal testimony of such person, by the testimony of a person who produced, processed, published, printed or manufactured such visual material that the child therein was known to him to be under eighteen years of age, or by expert testimony as to the age of the person based upon the person's physical appearance, by inspection of the visual material, or by any other method authorized by any general or special law or by any applicable rule of evidence."
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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