State of New Jersey v. Andrew Higginbotham, 313 A.3d 847

Andrew Higginbotham was charged under a New Jersey statute for endangering the welfare of a child by "portraying a child in a sexually suggestive manner," specifically under subsection (c) of N.J.S.A. 2C:24-4(b)(1).
The charges involved photos of a clothed five-year-old, superimposed with obscenities, some collaged next to images of the defendant’s aroused, but clothed, genitalia.
Higginbotham challenged the statute as unconstitutionally vague and overbroad under the First Amendment, arguing it reached protected speech.
The trial court denied dismissal, but the Appellate Division reversed, finding subsections (a), (b), and (c) overbroad, criminalizing images not meeting the legal definitions of obscenity or child pornography.
The New Jersey Supreme Court reviewed whether only subsection (c) is facially overbroad, declining to address subsections (a) and (b), which defendant was not charged under and had not challenged.

Issue	State's Argument	Higginbotham's Argument	Held
Is subsection (c) of the statute overbroad under the First Amendment?	Subsection (c) should be read narrowly, only prohibiting child pornography per Supreme Court standards	Subsection (c) criminalizes speech that is neither obscene nor child pornography	Subsection (c) is facially overbroad; it captures a substantial amount of protected speech
Does subsection (c) track the legal definitions of obscenity or child pornography?	It tracks the scope of child pornography and incorporates Miller’s "serious value" test	It lacks necessary obscenity criteria and covers protected images	Subsection (c) goes beyond allowable definitions; it is not limited to obscenity or child pornography
Should limiting language from other subsections be applied to (c)?	Limiting terms from (a) and (b) should be read into (c) by implication	Each subsection is disjunctive and uses different language; the court cannot rewrite the law	Limiting language cannot be imported; (c) stands apart and must be evaluated on its own
Can the State prosecute Higginbotham under other laws?	Subsection (c) should be preserved to prosecute harmful conduct	Defendant could be prosecuted under New Jersey's obscenity law	Defendant can be prosecuted under obscenity law, not under overbroad statute

Miller v. California, 413 U.S. 15 (1973) (establishes three-part test for obscenity)
New York v. Ferber, 458 U.S. 747 (1982) (permits states to prohibit child pornography, defines its scope)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (prohibits laws criminalizing images not involving the sexual exploitation of actual children)
United States v. Williams, 553 U.S. 285 (2008) (clarifies the scope of child pornography for First Amendment analysis)
Stanley v. Georgia, 394 U.S. 557 (1969) (protects possession of obscene material in the home under the First Amendment)
United States v. Hansen, 599 U.S. 762 (2023) (describes the standard for overbreadth in First Amendment challenges)