State v. MauerState v. Mauer
- Reporters:
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- Before:
- Lansing
OPINION
LANSING, Judge.
A district court judge found Helmut Mauer guilty of possession of child pornography under
FACTS
The facts are undisputed. Following a court trial in 2004, the district court judge
Mauer personally signed for delivery of the compact discs. Shortly after delivery, a postal inspector, who had obtained a valid search warrant, seized the discs. Although Mauer initially denied that the images of individuals on the discs were children, he later contacted the postal inspector and, during the conversation, told the inspector that he knew the images on the discs were people who were underage. At trial he testified that he thought the children would be over eighteen years old but acknowledged that they could be as young as nine years old. The district court found Mauer guilty of three counts of possessing child pornography.
Following conviction, Mauer filed a notice of appeal and moved for a stay to pursue postconviction relief. Mauer then filed a posteonviction petition challenging the constitutionality of
ISSUE
Does a statute that criminalizes the possession of child pornography contain a constitutionally sufficient level of scienter when it requires that the person in possession have “reason to know” that the pornographic work uses a minor to depict actual or simulated sexual conduct?
ANALYSIS
Questions of constitutional interpretation are issues of law that we review de novo.
Hamilton v. Comm’r of Pub. Safety,
600 N.W.2d 720, 722 (Minn.1999). In Minnesota, statutes are generally presumed constitutional.
State v. Barker,
705 N.W.2d 768, 771 (Minn.2005). We will declare a statute unconstitutional “only when absolutely necessary.”
State v. Behl,
564 N.W.2d 560, 566 (Minn.1997) (quotation omitted). Because of the “unique protections” afforded by the First Amendment, however, the ordinary presumption of constitutionality does not apply to a statutory provision that restricts First Amendment rights.
State v. Casino Mktg. Group, Inc.,
491 N.W.2d 882, 885 (Minn.1992);
see also Johnson v. State Civil Serv. Dep’t,
280 Minn. 61, 66, 157 N.W.2d 747, 751 (1968) (commenting on need for presumption of constitutionality to yield to preferred First Amendment rights). Instead, in the First
Child pornography, whether or not it is determined to be obscene, is unprotected by the First Amendment. New York v. Ferber, 458 U.S. 747, 764-65, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). Because of the compelling interest in protecting the physical and psychological well-being of minors, states are “entitled to greater leeway in the regulation of pornographic depictions of children.” Id. at 756, 102 S.Ct. at 3354. States may thus punish not only distribution of child pornography but also possession. Osborne v. Ohio, 495 U.S. 103, 109-11, 110 S.Ct. 1691, 1695-97, 109 L.Ed.2d 98 (1990).
Nevertheless, all speech regulation must “avoid the hazard of self-censorship of constitutionally protected material.” Mishkin v. New York, 383 U.S. 502, 511, 86 S.Ct. 958, 965, 16 L.Ed.2d 56 (1966). To protect free expression, criminal child-pornography laws must therefore include “some element of scienter on the part of the defendant.” Ferber, 458 U.S. at 765, 102 S.Ct. at 3358 (citing Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959)). A child-pornography statute “completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.” United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472, 130 L.Ed.2d 372 (1994). The U.S. Supreme Court has approved criminal child-pornography laws requiring knowledge or recklessness about the age of the performer. See X-Citement Video, 513 U.S. at 78, 115 S.Ct. at 472 (permitting conviction based on knowledge); Osborne, 495 U.S. at 115, 110 S.Ct. at 1699 (approving recklessness standard).
Scienter is a legal term that refers to the “degree of knowledge that makes a person legally responsible for the consequences of his or her own act or omission.”
Black’s Law Dictionary
1373 (8th ed.2004). Unquestionably, the Minnesota statute at issue requires
some
degree of culpability as it relates to the age of the performers. The statute prohibits possessing depictions of minors involved in sexual conduct while “knowing or with reason to know its content and character.”
Mauer argues that the statute’s culpability requirement is constitutionally insufficient for a statute regulating child pornography‘. According to Mauer, the “reason to know” language creates a civil-negligence standard. Mauer’s characterization of “reason to know” as a civil-negligence standard has support in the language of some Minnesota cases.
See State v. Grover,
437 N.W.2d 60, 62-63 (Minn.1989) (equating “reason to know” with criminal-negligence standard);
see also D.M.S. v. Barber,
645 N.W.2d 383, 387 (Minn.2002) (interpreting “reason to know” in
In the obscenity context, the U.S. Supreme Court has considered a statute that used a similar standard. In Ginsberg v. New York, a statute criminalized the knowing sale of obscene materials to minors and defined “knowingly” to include “reason to know” or “a belief or ground for belief which warrants further inspection or inquiry.” 390 U.S. 629, 643, 88 S.Ct. 1274, 1283, 20 L.Ed.2d 195 (1968). The Court rejected a facial challenge to the statute, relying on the state court’s interpretation of the statute as applying only to “those who are in some manner aware of the character of the material they attempt to distribute.” Id. at 644, 88 S.Ct. at 1283 (emphasis omitted) (quotation omitted).
The Court has approved of the “in some manner aware” standard in other cases as well. In Mishkin the Court concluded that the “in some manner aware” standard “amply serves” the goal of protecting against the risk of suppressing protected expression and “fully meets the demands of the Constitution.” 383 U.S. at 511, 86 S.Ct. at 965. The Minnesota Supreme Court has similarly interpreted a state obscenity statute to include the “in some manner aware” standard. State v. Oman, 261 Minn. 10, 17, 110 N.W.2d 514, 520 (1961) (interpreting statute to punish only those “who are in some manner aware of the character of the material” they attempt to distribute).
In light of the similar First Amendment concerns that apply to child pornography, we conclude that
We recognize that. Mishkin and Ginsberg are arguably distinguishable on two grounds. First, both eases involved obscenity, not child pornography. But this distinction favors the “in some manner aware” standard because the First Amendment provides less, not more, protection to child pornography than to obscenity. See Ferber, 458 U.S. at 756, 102 S.Ct. at 3354 (concluding that states have “greater leeway” in regulating child pornography). Second, these cases involve distribution, not possession. But the private possession of child pornography, unlike the possession of obscene materials, still causes harm to the children exploited. See Osborne, 495 U.S. at 108-11, 110 S.Ct. at 1696 (distinguishing Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)).
It is also constitutionally significant that the definition of child pornography is less ambiguous than the definition of obsceni
We are thus persuaded that, in this context, the possession of child pornography does not require any greater protection than the distribution of obscene materials. Hence, we conclude that Mishkin and Ginsberg, as well as Osborne, support the conclusion that the “in some manner aware” standard is sufficient to support a conviction for possession of child pornography.
Furthermore, as a policy matter, the state’s compelling interest in the physical and emotional well-being of minors justifies the use of “in some manner aware” as the requisite level of scienter in
The state’s substantial interest in preventing the sexual exploitation of minors amply justifies the “in some manner aware” standard. The “in some manner aware” standard would deter the possession of child pornography without placing an unconstitutional burden on protected expression. A “knowledge” standard, on the other hand, “places too high a burden on the government and is not necessary under First Amendment doctrine.” Egan,
supra,
86 J.Crim. L. & Criminology at 1378. It would allow people in possession of child pornography to simply “close their eyes as to the age” of the performers.
United States v. Carter,
854 F.2d 1102, 1109 (8th Cir.1988) (rejecting lack-of-knowledge defenses in case involving use of children in distribution of controlled substance). Although a “knowledge” standard would adequately guard against the risk of self-censorship, it would defeat the goal of effectively regulating child pornography because it would protect willful blindness. The “in some manner aware” standard, in contrast, both protects against the risk of self-censorship and furthers the state’s interest in combating child pornography. We therefore conclude that
Finally, we must decide whether Mauer’s conviction can be affirmed in light of our interpretation of the child pornography statute. We conclude that it can. Although our interpretation may be a narrowing construction, a statute as construed “may be applied to conduct occur
DECISION
Affirmed.