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 § 272:29A (1986), was enacted in 1982.
Another statute, Mass. Gen. Laws § 272:31 (1986), defines "nudity" as
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]
We granted certiorari to review the decision of the Massachusetts Supreme Judicial Court, 486 U.S. 1022 (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 (1987); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-504 (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 (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 (1973).
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. 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
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 (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 rendered 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 (1965) (citations omitted). See also Broadrick v. Oklahoma, 413 U. S., at 613 ("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
Vacated and remanded.
JUSTICE SCALIA, with whom JUSTICE BLACKMUN joins, and with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join as to Part I, concurring in the judgment in part and dissenting in part.
I do not agree with JUSTICE O'CONNOR'S conclusion that the overbreadth defense is unavailable when the statute alleged to run afoul of that doctrine has been amended to eliminate the
Since I find that the subsequent amendment of the statute under which Oakes acted and was convicted does not eliminate the defense of overbreadth, I reach the question whether the statute is impermissibly overbroad. I do not believe that it is. Because the Court as a whole does not reach the question, I sketch my views on it only in brief.
In order to be invalidated under our overbreadth doctrine, a statute's unconstitutional application must be substantial, not just in an absolute sense, but "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). We held in New York v. Ferber, 458 U.S. 747, 756-757 (1982), that the State has a "compelling" interest in "safeguarding the physical and psychological well-being of . . . minor[s]" against harm of the sort at issue here. That case upheld against First Amendment attack a law directed against the use of children in pornographic (including nonobscene) materials. (Although the prohibition related to the distribution of pictures rather than the making of them, the former would seem to be even closer to the core of the First Amendment.) Thus, the scope of this statute has already been validated except as to nonpornographic depiction of preadolescent genitals, and postadolescent genitals and female breasts. On that basis alone, given the known extent of the so-called kiddie-porn industry, Act of May 21, 1984, 98 Stat. 204, and of pornographic magazines that use young female models (to one of which the defendant here apparently intended to send his stepdaughter's photograph), I would estimate that the legitimate scope vastly exceeds the illegitimate.
Perhaps I am wrong in my estimation of how frequently the posings prohibited by this law are done for artistic purposes, or for family photographs — or in some other legitimate
Having found the ground upon which the Supreme Judicial Court of Massachusetts relied to be in error, I would reverse and remand the case to permit that court to dispose of the as-applied challenge.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, dissenting.
The proper framework for analyzing respondent's claims is not in doubt. First, we must determine whether the Massachusetts statute criminalizes expression protected by the First Amendment. If it does, then we must decide whether Massachusetts has a compelling interest in regulating that expression. To the extent that the Commonwealth's interest does not justify the suppression of all protected conduct prohibited by the statute, we must further ask whether the law's overbreadth is "not only . . . real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973), once we have adopted any available narrowing constructions or severed offensive portions insofar as it lies within our power to do so. If the statute is excessively overbroad, we have no choice but to strike it down on its face, notwithstanding its laudable objectives and its numerous permissible applications; if it is not, then Oakes and others charged under
With the possible exception of the final step in this analysis, the resolution of these questions is straightforward. Photography, painting, and other two-dimensional forms of artistic reproduction described in Mass. Gen. Laws § 272:29A (1986) are plainly expressive activities that ordinarily qualify for First Amendment protection. See, e. g., Miller v. California, 413 U.S. 15 (1973) (works which, taken as a whole, possess serious artistic value are protected). And modeling, both independently and by virtue of its close association with those activities, enjoys like shelter under the First Amendment. Cf. Schad v. Mount Ephraim, 452 U.S. 61, 66 (1981) ("[N]ude dancing is not without its First Amendment protections from official regulation"). Visual depictions of children engaged in live sexual performances or lewdly exhibiting their genitals cannot, of course, claim protected status, even though those depictions are not obscene. See New York v. Ferber, 458 U.S. 747 (1982). But other nonobscene representations of minors, including some that are pornographic, are shielded by the Constitution's guarantee of free speech. Id., at 764-765. In particular, "nudity, without more is protected expression." Id., at 765, n. 18, citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975). Because
It is equally evident that the Commonwealth's asserted interest in preventing the sexual exploitation and abuse of minors is "of surpassing importance." Ferber, supra, at 757. See also Ginsberg v. New York, 390 U.S. 629, 639-641 (1968). The coercive enlistment, both overt and subtle, of children in the production of pornography is a grave and widespread evil which the States are amply justified in seeking to eradicate. Massachusetts' interest in ending such conduct undoubtedly suffices to sustain the statute's ban on encouraging, causing, or permitting persons one has reason to know are under 18 years of age to engage in any live sexual performance or any act that represents sexual conduct, for the purpose of visual representation or reproduction.
The Commonwealth lacks an overriding interest, however, in prohibiting adults from allowing minors to appear naked in photographs, films, and pictures with their genitals or, in the case of adolescent girls, their breasts less than opaquely covered under all circumstances except the production of such works "for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library." § 29A. One situation where the Commonwealth's interest falls glaringly short was cited by the Massachusetts Supreme Judicial Court: parents might want to photograph their infant children or toddlers in the bath or romping naked on the beach, yet § 29A threatens them with a prison term of between 10 and 20 years or a minimum fine of $10,000 for doing so. And § 29A imposes those penalties even though parents have the same First Amendment interest in taking those photographs as they do in keeping a diary or boasting of their children's antics, and even though their children would not thereby be harmed. Amicus American Sunbathing Association, a nudist organization with 30,000
In my view, the First Amendment also blocks the prohibition of nude posing by minors in connection with the production of works of art not depicting lewd behavior and not specifically prepared, in accordance with § 29A's exclusion, for museums or libraries. Many of the world's great artists — Degas, Renoir, Donatello,
The test we employ is familiar. Because "conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U. S., at 615. See also, e. g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); Houston v. Hill, 482 U.S. 451, 458 (1987); Ferber, supra, at 769. We will not topple a statute merely because we can conceive of a few impermissible applications. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, and n. 19 (1984). The possibility of a substantial number of realistic applications in contravention of the First Amendment, however, suffices to overturn a statute on its face. In this regard, it bears emphasizing that "the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial." Ferber, 458 U. S., at 773. Although "the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth," ibid., it does appreciably shrink the amount of overbreadth we will find constitutionally tolerable, particularly when the penalty is severe.
In this case, there is no gainsaying the gravity of the penalties meted out for violations of § 29A. Infractions carry a fine of between $10,000 and $50,000, a prison term of between 10 and 20 years, or both. Respondent was himself sentenced to 10 years' imprisonment for taking fewer than a dozen snapshots of his stepdaughter, which he apparently showed no one except the complainant. The severity of these sanctions significantly reduces the degree of overbreadth that the Constitution permits.
One can also readily adduce actual examples of protected conduct within § 29A's compass. Parents photograph their children without abusing them sexually in Massachusetts as elsewhere. The arts flourish there. Four nudist clubs affiliated with the American Sunbathing Association alone have been established in the Commonwealth, Brief for American Sunbathing Association as Amicus Curiae 2, and there may well be others.
The only question that might give one pause is whether the statute's overbreadth is substantial. Unhappily, our precedents provide limited guidance in resolving this issue, because substantiality cannot be defined with exactitude and
In Houston v. Hill, supra, at 464-466, we asked whether the sweeping nature of an ordinance making it a criminal offense to oppose, abuse, or interrupt a policeman in the performance of his duties was essential to achieve its ends, or whether a more narrowly tailored law could have attained the same objectives without abridging First Amendment freedoms to the same extent. Our finding that the law could have been drafted more tightly without sacrificing the achievement of its legitimate purposes impelled us to pronounce it fatally overbroad. Section 29A suffers from the same flaw. Its blanket prohibition on permitting minors to pose nude or employing nude models, without regard to the adult's intentions or the sexually explicit nature of the minor's conduct, nets a considerable amount of protected conduct. The statute can, moreover, easily be truncated. As the plurality describes, ante, at 582-583, and n. 2, Massachusetts itself has recently amended § 29A to lessen its threat to protected conduct by requiring that an adult act with "lascivious intent" to come within the statute's prohibition.
Together with the stern sanctions § 29A imposes, the ease with which its unconstitutional applications might be eliminated lowers the hurdle respondent must clear in proving substantial overbreadth. By the standards set in our earlier decisions, that proof has in my judgment been made. The abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots, allows one to say, as the Court said in Houston v. Hill, 482 U. S., at 466-467 (citation omitted), that "[t]he ordinance's plain language is admittedly violated scores of times daily, yet only some individuals — those chosen by the police in their unguided discretion — are arrested."
Indeed, even if I were less confident that the statute was routinely violated by protected conduct — and the test, of course, is the relative frequency of such violations, not what we believe is the likelihood that such violations will in fact be prosecuted — I would reach the same conclusion. In Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), we struck down for overbreadth a statute making it a public nuisance to
Briefs of amici curiae urging affirmance were filed for the American Sunbathing Association, Inc., by Robert T. Page; and for the Law and Humanities Institute by Edward de Grazia.
"(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."
"In view of the statute's amendment since Bigelow's conviction in such a way as `effectively to repeal' its prior application, there is no possibility now that the statute's pre-1972 form will be applied again to appellant or will chill the rights of others. As a practical matter, the issue of its overbreadth has become moot for the future. We therefore decline to rest our decision on overbreadth and we pass on to the further inquiry, of greater moment not only for Bigelow but for others, whether the statute as applied to appellant infringed constitutionally protected speech." Id., at 817-818.
Although the dissent in Bigelow characterized this as a statement that "Virginia's statute cannot properly be invalidated on grounds of overbreadth," id., at 830 (REHNQUIST, J., dissenting), I do not think it says that. Whether the statute is invalid because of overbreadth and whether the issue of overbreadth should be reached are two quite different questions, and it is only the latter that the Court addressed. The Court simply decided that since the question whether the statute was overbroad was no longer of general interest ("ha[d] become moot for the future"), whereas the issues involved in the as-applied challenge were of continuing importance, the Court would more profitably expend its time on the latter. Moreover, as the Court held Bigelow's conviction unconstitutional on as-applied grounds, it was unnecessary to decide the merits of the overbreadth issue in that case.