State v. Sanel Masic, 261 A.3d 646

Background:

In Sept. 2017 a law-enforcement task force posed online as a fictitious 14‑year‑old (“Grayson”); defendant responded to an ad and engaged in explicit electronic messages requesting oral sex and stating he didn’t care about age.
When Grayson said he was 14, defendant repeatedly affirmed that was acceptable, demanded an address, then drove to a prearranged meeting location and was arrested.
Defendant was charged under 13 V.S.A. § 2828 (criminalizing knowingly soliciting, luring, or enticing a child under 16 or a person believed to be under 16 to engage in sexual acts or lewd conduct).
Defendant moved to dismiss on First Amendment and vagueness/overbreadth grounds and argued the statute lacks a specific‑intent requirement; the superior court denied the motion; a jury convicted him.
Sentence: 2–5 years (two years to serve) and 10 years’ probation; one probation condition required residing at an approved residence as directed by the probation officer—defendant appealed that condition.

Issues:

Issue	State's Argument	Masic's Argument	Held
Whether § 2828 is a content‑based restriction on speech requiring strict scrutiny	Statute targets offers to commit illegal sexual acts with minors, i.e., speech integral to criminal conduct, so it is categorically excluded from First Amendment protection	Statute regulates speech based on content/subject matter and thus must survive strict scrutiny	Court: Not a protected content‑based restriction; speech integral to criminal conduct (offers to commit child sexual offenses) falls outside First Amendment strict scrutiny (affirmed conviction)
Whether § 2828 is facially overbroad or unconstitutionally vague	§ 2828 contains a knowingly scienter and clear terms (solicit/lure/entice; defined target and sexual‑act terms), so it is neither substantially overbroad nor vague	Statute is overbroad (chills protected sexual expression, roleplay, artistic speech) and vague (no specific‑intent requirement)	Court: Rejected facial overbreadth and vagueness challenges; scienter and statutory language sufficiently narrow the statute
Whether statute is unconstitutional as‑applied and whether "knowingly" is insufficient mens rea	State: "Knowingly" and attempt language supply the requisite culpability; application here is within statute’s scope	Masic: He lacked specific intent (argued he intended to warn, not solicit); statute should require purposeful intent	Court: As‑applied challenge fails—evidence supports that defendant acted knowingly; Constitution does not require a higher mens rea than "knowingly"
Whether the probation condition permitting residence as directed by probation officer was proper	State: Restrictions on residence may be warranted given the offense; remand for findings is appropriate	Masic: Condition improperly delegated and lacked factual findings/standards	Court: Condition invalid as imposed without findings or standards; remanded for the superior court to justify, revise, or strike the condition

Key Cases Cited

United States v. Williams, 553 U.S. 285 (categorical exclusion of speech integral to criminal conduct)
New York v. Ferber, 458 U.S. 747 (state interest in preventing sexual exploitation of children is of surpassing importance)
Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (general prohibition on content‑based restrictions)
R.A.V. v. City of St. Paul, 505 U.S. 377 (content‑based regulations presumptively invalid)
United States v. Stevens, 559 U.S. 460 (limits on overbreadth doctrine; well‑defined exceptions to First Amendment)
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (speech used as an integral part of unlawful conduct may be regulated)
United States v. Dwinells, 508 F.3d 63 (1st Cir. upholding federal child‑luring statute; speech arranging sexual conduct with minors not protected)
United States v. Gagliardi, 506 F.3d 140 (2d Cir. similar principle: no First Amendment right to induce a minor to commit sexual crimes)
Broadrick v. Oklahoma, 413 U.S. 601 (overbreadth is a disfavored, "strong medicine" remedy)
State v. Moses, 159 Vt. 294 (Vt. 1992) (court may not delegate undefined probation conditions to probation officer)