UNITED STATES OF AMERICA v. RAY DONALD LOY
No. 99-3827
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 4, 2001
2001 Decisions, Paper 2
BECKER, Chief Judge, NYGAARD and GARWOOD, Circuit Judges
Precedential or Non-Precedential: Docket 99-3827. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. No. 98-cr-00089). District Judge: Alan N. Bloch. Argued: March 9, 2000.
2001 Decisions Opinions of the United States Court of Appeals for the Third Circuit
1-4-2001
United States v. Loy
Precedential or Non-Precedential:
Docket 99-3827
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Recommended Citation
“United States v. Loy” (2001). 2001 Decisions. Paper 2. http://digitalcommons.law.villanova.edu/thirdcircuit_2001/2
Filed January 4, 2001
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 99-3827
UNITED STATES OF AMERICA v. RAY DONALD LOY, Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 98-cr-00089)
District Judge: Alan N. Bloch
Argued: March 9, 2000
BEFORE: BECKER, Chief Judge, NYGAARD and GARWOOD,* Circuit Judges
(Filed January 4, 2001)
Bonnie R. Schlueter, Esq. Mary Beth Buchanan, Esq. (Argued) Office of United States Attorney 633 United States Post Office & Courthouse Pittsburgh, PA 15219 Attorneys for Appellee
OPINION OF THE COURT
BECKER, Chief Judge.
Ray Donald Loy is currently serving a 33-month term of imprisonment following his conviction for receiving and possessing child pornography. After being released from prison, he will be required to serve three years of supervised release, subject to several special conditions, two of which are at issue in this appeal. The first condition prohibits Loy from
At the threshold, we must address the government‘s contention that Loy‘s challenge to the pornography condition should not be addressed before an attempt has
As for the restriction on contact with minors, we conclude that, although the condition might arguably extend to Loy‘s own (infant) children should he sire any upon his release from prison and before the three-year term of supervised release ends, given the lack of evidence to suggest that such an unlikely interpretation was intended by the District Court (and the constitutional questions that such an interpretation would raise), we will construe this condition not to extend to any children that Loy might have for the brief period of time that would be involved. We also construe the condition not to extend to accidental or unavoidable contact with children, such as might occur in public arenas. So construed, we uphold the condition as written and find that it comports with statutory and constitutional requirements.
I. Facts and Procedural History
This is the second time Loy has asked us to review the special conditions imposed on his supervised release. The following facts are taken largely verbatim from our decision in Loy‘s first appeal. See United States v. Loy, 191 F.3d 360, 362-64 (3d Cir. 1999). Of course, we have supplemented our previous factual discussion as necessary to reflect developments that have occurred in the interim.
In 1997, the United States Postal Inspection Service and the Pennsylvania State Attorney General‘s Office conducted a joint undercover child pornography investigation. As part of that investigation, Special Agent Dave Guzy of the Attorney General‘s Office placed an advertisement in a sexually explicit magazine that, in a roundabout way, invited readers to trade pornographic materials involving children. The advertisement directed interested parties to respond in writing to Postal Inspector Thomas Kochman, although Kochman‘s affiliation with the Inspection Service obviously was not disclosed. On March 6, 1997, Ray Donald Loy wrote to Kochman indicating that he and his wife, Maria, both collected child pornography, and expressing an interest in trading tapes. Loy stated that if Kochman was serious about trading, he should call Loy so that they could discuss it over the telephone.
On March 17, 1997, Kochman monitored and recorded a call placed by Guzy to Loy. During that conversation, Loy gave detailed descriptions of some of the tapes in his collection, and told Guzy that he could “put together” tapes for trading. He also represented that he traded with many people and offered to give Guzy their names. Loy described how he had produced videos by hiding a camcorder in his bag and filming up the skirts of young girls as they rode the escalators at a mall, and, in the course of the conversation, Loy specified that he was interested in receiving material involving girls ranging from age eight to age thirteen. He specifically requested that Guzy send him a tape of girls between the ages of eight and ten in a bathtub (“Bath Time video“), which Guzy agreed to do. On April 28, 1997, Kochman received a letter from Loy bearing the return address of R. Loy, P.O. Box 114, Langeloth, Pennsylvania 15054. Again, Loy asked that the Bath Time video be sent to him. In exchange, Loy offered to send a video
On May 6, 1997, Postal Inspector Thomas Clinton delivered the package containing the Bath Time video to Loy‘s post office box in Langeloth and observed Loy accept delivery of the package. Other agents maintained surveillance of Loy as he left the post office and returned home with the package. Loy was observed entering his residence with the package in his possession. Clinton then executed a previously obtained search warrant, seizing from Loy‘s residence the Bath Time videotape as well as another tape depicting child pornography, fifteen computer disks containing child pornography, fifty videocassettes, several pornographic magazines, a VCR, and a television set. Clinton also seized various letters describing Loy‘s solicitation of child pornography and his offers to trade such materials.
In September 1998, Loy pled guilty to one count of knowingly receiving child pornography through the United States mail in violation of
The District Court sentenced Loy to a 33-month term of imprisonment, followed by three years of supervised release. Additionally, the court imposed special conditions on Loy‘s supervised release, requiring him, inter alia, to undergo testing and treatment for drug and alcohol abuse, prohibiting him from having unsupervised contact with minors, and forbidding him from possessing pornography of any type. Loy objected to these special conditions, arguing that they were not supported by the record and that they violated his fundamental rights. In the first appeal, we upheld the denial of Loy‘s motion to suppress and the condition requiring drug testing, but remanded the case to the District Court to state its reasons why the remaining conditions had been imposed. See Loy, 191 F.3d at 369-71.
Following remand, the District Court entered an order amending Loy‘s sentence to eliminate the condition that he undergo testing and treatment for alcohol abuse while on supervised release. The court then reimposed the conditions barring Loy from possessing pornography of any type, as well as from having any unsupervised contact with minors, adding the further requirement that any supervision must come from someone other than his wife. In reimposing these conditions, the court explained that because “it is sometimes impossible to differentiate between children and adults in pornographic materials,” the former condition was necessary to protect children who are victimized in child pornography as well as to deter Loy from further criminal conduct or from attempting to obtain illegal child pornography. The latter condition was imposed to protect the minors with whom Loy might come into contact, and to deter Loy from attempting to create “sexually explicit depictions of children.” Loy now appeals for a second time, from an amended judgment of sentence entered in the District Court for the Western District of Pennsylvania. The District Court had jurisdiction pursuant to
A sentencing court‘s decision to impose conditions of supervised release is reviewed for abuse of discretion. See United States v. Loy, 191 F.3d 360, 370 n.7 (3d Cir. 1999) (citing United States v. Crandon, 173 F.3d 122, 127 (3d Cir.), cert. denied, 120 S. Ct. 138 (1999)). A condition is within the court‘s discretion if two criteria are met. First, the condition must be reasonably related to the factors set forth in
Second, a condition must involve no greater deprivation of liberty than is reasonably necessary to achieve the deterrence, public protection and/or correctional treatment for which it is imposed. See
III. The Challenge to the Pornography Prohibition
A. Justiciability
Before reaching the merits of Loy‘s claim, we must address the government‘s contention that Loy‘s challenge to the pornography proscription is not justiciable. The government advances several arguments on this score, implicating both the ripeness doctrine and standing considerations. Relying on United States v. Thomas, 198 F.3d 1063, 1065 (8th Cir. 1999) (holding that a prisoner‘s challenge to a condition of supervised release was premature because he would “not be subject to the condition for nearly a decade, during which time any number of events may occur that would make the condition irrelevant“), the government explains that, inter alia, an incarcerated prisoner may no longer have the same interest in engaging in the prohibited activity upon release from prison, and further, that vagueness challenges to conditions of supervised release are premature until those conditions have been interpreted by a probation officer. The government now asks that, “[a]s a matter of judicial policy,” we refrain from entertaining due process challenges to conditions of supervised release prior to a violation of those conditions. Although the government avoids the words, it essentially asks us to hold that Loy‘s challenge fails to meet the prudential aspects of ripeness.
Additionally, in recommending that we adopt a judicial policy of refusing to hear due process challenges to unenforced conditions of release, the government also relies on the standing requirements typically necessary to mount vagueness challenges to statutes that do not infringe constitutionally protected rights. Thus, citing Parker v. Levy, 417 U.S. 733 (1974), the government has argued that because vagueness challenges may typically only be made in the context of particular purported violations, Loy must wait until he is facing revocation proceedings before he will be able to raise his claim. We will address each of these arguments in turn, ultimately holding that Loy‘s claim is not only justiciable, but, in fact, consideration at this time promotes judicial efficiency and is in keeping with the demonstrated congressional intent that sentences be reviewed on direct appeal.
1. Ripeness
In United States v. Stine, 646 F.2d 839, 846-47 (3d Cir. 1981), this Court held that a defendant who failed to appeal a probation condition at the time it was entered against
Although helpful in guiding our approach to the issue, these cases do not explicitly address the “prudential” ripeness doctrine. That doctrine is intended to “prevent the courts . . . from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). In determining whether a claim is ripe, a court must look at: (1) “the hardship to the parties of withholding court consideration“; and (2) the fitness of the legal issue for judicial review. Id. at 149; see also Artway v. Attorney General of N.J., 81 F.3d 1235, 1247 (3d Cir. 1996). In view of the government‘s contentions, we analyze this case in terms of these elements of the prudential ripeness doctrine.
a. Hardship to Parties
The essence of Loy‘s claim is that not knowing the scope of the pornography proscription is, in itself, a hardship. He argues that because of the vagueness, he will not know what he can and cannot view. If, as the government argues, he must wait until he is arrested to learn whether or not he has violated the condition, the hardship to him is apparent. As we held in Pennsylvania Department of Public Welfare v. United States Department of Health & Human Services, 101 F.3d 939 (3d Cir. 1996), the fact that a party may be forced to alter his behavior so as to avoid penalties under a potentially illegal regulation is, in itself, a hardship. In so doing, we opined that an argument to the contrary would be
like saying that an increase in the interest rate charged for late payments on a credit card presents no hardship to the customer because the customer has not yet made a delayed payment under the new and higher interest rate. We disagree with that premise. Instead, we think it more likely that the customer will have to change his behavior at the time he is informed of the rate hike in order to avoid the risk of having to pay the higher interest rate and hence will suffer a direct hardship at the time of the rate hike. The fact that the new, higher interest rate is a contingent future charge does not preclude it from causing harm to the party at the time it is put into place.
In addition, the government‘s blanket requirement that Loy face revocation proceedings before being permitted to challenge his conditions of release is at odds with the Supreme Court‘s pronouncement in Steffel v. Thompson, 415 U.S. 452 (1974), where the Court stated that “it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Id. at 459.
An examination of the “fitness for judicial review” of a particular claim requires that a court look at the nature of the question presented. Therefore, we will examine “whether or not the question is purely legal and easy to resolve.” Pennsylvania Dep‘t of Pub. Welfare v. United States Health & Human Servs., 101 F.3d 939, 945 (3d Cir. 1996). As we have said, “[t]he more that the question presented is purely one of law, and the less that additional facts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice-versa.” Artway v. Attorney General of N.J., 81 F.3d 1235, 1249 (3d Cir. 1996).
In this case, the question is purely one of law: whether the pornography proscription is unconstitutionally vague and does not provide Loy with sufficient notice of what he may do. Nothing about this contention will change between now and the time when he is released from prison. The government would prefer that we address Loy‘s challenge in the context of a particular magazine or other publication (an argument that has the perverse quality of asking us to refuse to rule on Loy‘s vagueness challenge because the condition is too vague to analyze). Although such contextual grounding would indeed allow us to determine whether or not the particular publication at issue fell within the condition, it would not in any way assist in the more general analysis of whether the condition provides Loy with sufficient warning to “know what is prohibited, so that he may act accordingly” in his day-to-day activities. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The government‘s approach would have Loy discover the meaning of his supervised release condition only under continual threat of reimprisonment, in sequential hearings before the court. Such an exercise is not necessary, nor will it clarify the issues.
c. Congressional Intent
In Abbott Laboratories, the Supreme Court held that congressional intent is an important component of the prudential ripeness inquiry. See Abbott Labs. v. Gardner, 387 U.S. 136, 139-40 (1967). The legislative history of the Sentencing Reform Act of 1984 evidences Congress‘s intention that direct appellate review be the preferred method of reviewing a district court‘s sentence. See S. Rep. No. 98-225, at 151 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3334 (noting, in the context of a discussion of procedures for direct appellate review of sentences, that “most Western nations . . . consider review at the behest of either the defendant or the public to be a fundamental precept of a rational sentencing system, and the Committee considers it to be a critical part of the foundation for the bill‘s sentencing structure“); id. at 154, reprinted in 1984 U.S.C.C.A.N. at 3337 (“The Committee intends that a sentence be subject to modification through the appellate process. . . .“).
The government alternatively contends that Loy does not have standing to raise his claim, on the ground that “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974). The government submits that Loy cannot be heard until the condition has been applied to his specific conduct. However, there are crucial differences between the context in which Loy presents his challenge and the contexts in which the traditional standing requirements for vagueness challenges were developed.
A typical vagueness challenge is brought as a defense to a criminal charge, and can only be raised by a defendant whose own conduct arguably did not fall within the terms of the statute, thus allowing the defendant to claim that the lack of fair notice led to a deprivation of liberty without due process of law. See, e.g., United States v. National Dairy Prods. Corp., 372 U.S. 29, 32-33 (1963) (“Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. In determining the sufficiency of the notice a statute must of necessity be examined in light of the conduct with which a defendant is charged.” (citations omitted)). A defendant whose conduct is at the “core” of the activities clearly covered by the statute‘s terms may only raise a vagueness defense if the statute is one that is likely to chill the exercise of constitutionally protected conduct. See United States v. Mazurie, 419 U.S. 544, 550 (1975) (“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.“).1 Vagueness claims are therefore subject to different standing requirements depending on the nature of the statute or rule under attack.2
As a convicted felon sentenced to a term of supervised release, Loy‘s constitutional rights do not have the same
scope as those of ordinary persons. See United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 & n.14 (9th Cir. 1975) (observing that “probationers, like parolees and prisoners, properly are subject to limitations from which ordinary persons are free” and that “[m]erely because a convicted individual‘s fundamental rights are involved should not make a probation condition . . . automatically suspect“). In evaluating constitutional challenges to probation conditions, we have upheld conditions that are “directly related to deterring [the offender] and protecting the public,” even when First Amendment interests are at stake. United States v. Crandon, 173 F.3d 122, 128 (3d Cir.), cert. denied, 120 S. Ct. 138 (1999). The government, asserting that in the context of supervised release there is no “protected” conduct to chill, asks us to apply the
To begin with, a defendant charged with violating a release condition, unlike a defendant charged with violating a statute, does not enjoy “the full panoply of rights” normally available in a criminal proceeding. Morrissey v. Brewer, 408 U.S. 471, 480 (1972). For instance, defendants in revocation proceedings face a lower standard of proof, see
Secondly, persons under conditions of supervised release are presumably more likely to be “prosecuted” for their violations--these conditions are, after all, special “laws” tailored only to them. Loy, as a felon on supervised release, is in far more danger as the peculiar target of a “law” applicable only to him than he would be as a member of the general public mounting a challenge to a law that might never be applied to his conduct. Cf. Poe v. Ullman, 367 U.S. 497, 501 (1961) (plurality opinion) (refusing to entertain, on prudential justiciability grounds, a challenge to Connecticut‘s ban on the use of contraceptives, observing that “[d]uring the more than three-quarters of a century since [the law‘s] enactment, a prosecution for its violation seems never to have been initiated” except in a single instance).
Further, because the condition is unique to Loy, there is no likelihood of a general groundswell of support for a change in the “law.” Therefore, limits on standing that have been advanced in cases like United States v. Richardson, 418 U.S. 166, 175 (1974) (no “taxpayer standing” to challenge a statute mandating that CIA expenditures be kept secret), on the ground that “generalized grievances” are more appropriately addressed through the political process, are inapplicable to challenges to conditions of supervised release. And because the condition is applicable only to Loy, there is no chance that an “enforcement policy” will provide guidance as to the condition‘s contours. Hoffman Estates, 455 U.S. at 502.
On a broader level, it should be remembered that all of the justiciability doctrines--standing, ripeness, and mootness--stem in part from a desire to allow the other branches of government to engage in their normal process of lawmaking before invoking the judicial power to stop such efforts in their tracks. For instance, in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), the Supreme Court explained that the ripeness doctrine in part serves to “protect the agencies from judicial interference until an administrative decision has been formalized.” Id. at 148. Similarly, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77 (1992), the Court held that the citizen-suit provisions of the Endangered Species Act, which conferred standing on “any person” to sue United States instrumentalities to force compliance with the Act, represented an unconstitutional attempt by Congress to breach the separation of powers by policing the activities of the Executive branch. See id. at 576-77; see also Poe, 367 U.S. at 503 (“In part [the justiciability rules] derive from the fundamental federal and tripartite character of our National Government and from the role--restricted by its very responsibility--of the federal courts . . . within that structure.“).
In the context of the supervised release, however, the condition applicable to a particular prisoner--that is, the “law” being challenged--is created by the judiciary, within the jurisdictional boundaries set by Congress. No protection is accorded other divisions of government when we stay our hand; in fact, by doing so, we actively impede the proper process of lawmaking. Congress has entrusted the responsibility for formulating appropriate conditions of release to the judiciary, and has provided specific statutory permission for offenders to obtain appellate review of their sentences at
3. Judicial Efficiency
Our position also promotes judicial efficiency. See, e.g., Allstate Ins. Co. v. Wayne County, 760 F.2d 689, 696 (6th Cir. 1985) (holding that the ripeness inquiry includes considerations of judicial economy); Independent Bankers Ass‘n of Am. v. Smith, 534 F.2d 921, 928 (D.C. Cir. 1976) (same). Loy is pursuing, as a routine matter, his appellate right to challenge a final order of the District Court. We review these conditions all the time, and, as a prudential matter, it makes sense to review them at this stage. Just last year, we reviewed the conditions of a supervised release in United States v. Crandon, 173 F.3d 122, 128 (3d Cir.), cert. denied, 120 S. Ct. 138 (1999), and upheld a condition prohibiting the defendant access to the internet after he was convicted of receiving child pornography. The government‘s approach merely ensures multiple adjudications as defendants appeal parts of their sentences immediately--as, indeed, they must do under United States v. Stine, 646 F.2d 839 (3d Cir. 1981)--and parts of them later on. Cf. FTC v. Standard Oil Co., 449 U.S. 232, 242 (1980) (ripeness doctrine is intended to prevent “piecemeal review” and to ensure judicial efficiency).
4. Summary
Thus, (1) we have “case or controversy” jurisdiction; (2) the issues are legal ones that we can easily resolve without reference to concrete facts; (3) the defendant will experience a hardship if we do not resolve the issues; (4) the traditional canons that counsel against hearing these sorts of challenges are inapplicable in the context of supervised release conditions; and (5) the judicial system has an interest in dealing with this case as expeditiously as possible, instead of waiting for a distinct appeal of a conviction for a violation of the conditions of release. Therefore, the case is ripe, and we will reach the merits of Loy‘s challenge.
B. The Jurisprudence
The District Court ordered that, as a condition of his supervised release, Loy be prohibited “from possessing all forms of pornography, including legal adult pornography, in order to: (1) protect the children
The constitutional requirement that laws be reasonably precise as to the scope of prohibited conduct serves three distinct purposes:
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . . . Second, . . . [a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. . . . Third . . . where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms.
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (internal citations and quotation marks omitted). A statute violates due process of law if it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); see also United States v. Pungitore et al., 910 F.2d 1084, 1104 (3d Cir. 1990). The same principles apply to a condition of supervised release. See, e.g., United States v. Schave, 186 F.3d 839 (7th Cir. 1999) (citing Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972)); LoFranco v. United States Parole Comm‘n, 986 F. Supp. 796, 810-11 (S.D.N.Y. 1997).
Courts have long grappled with the problem of generating definitions to facilitate the regulation of sexually explicit materials. In 1957, the Supreme Court held that “obscene” speech is beyond the coverage of the First Amendment. See Roth v. United States, 354 U.S. 476, 485 (1957). For years afterward, the Court struggled to find a definition of “obscenity,” see, e.g., Memoirs v. Massachusetts, 383 U.S. 413 (1966); Redrup v. New York, 386 U.S. 767 (1967); Kois v. Wisconsin, 408 U.S. 229 (1972) (per curiam), finally settling on the now-familiar Miller test, see Miller v. California, 413 U.S. 15 (1973). In order for a work to fall outside the scope of the First Amendment, it must: (1) taken as a whole, according to community standards, appeal to the “prurient interest,” (2) depict, “in a patently offensive way,” sexual conduct as defined by state law, (3) when taken as a whole, lack “serious literary, artistic, political, or scientific value.” Id. at 24. “Sexually-oriented work is not obscene unless all three elements of the Miller test are satisfied.” United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 135 (2d Cir. 1983).
The determination whether a particular work is “obscene” under the Miller test is an exacting inquiry. Though “community standards” are used to determine whether a work is patently offensive, see Smith v. United States, 431 U.S. 291, 301 (1977), a “reasonable person” standard must be used to determine whether a work lacks serious merit, see Pope v. Illinois, 481 U.S. 497, 500-501 (1987). “Prurience,” for Miller purposes, does not include an appeal to “normal, healthy sexual desires,” but only includes “material whose predominate appeal is to a shameful or morbid interest in nudity, sex, or excretion,” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) (internal quotation marks omitted). “Sexual conduct” can include
Many items that would almost certainly fall under the general rubric of “pornography” may not be captured by Miller‘s prongs. See, e.g., Various Articles of Obscene
Merchandise, 709 F.2d at 137 (upholding trial court determination that the film Deep Throat was not patently offensive by the community standards of New York); Penthouse Int‘l, Ltd. v. McAuliffe, 610 F.2d 1353, 1373 (5th Cir. 1980) (holding that the January 1978 issue of Penthouse, but not Playboy, was obscene). In American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), the court examined a statute that specifically defined the term “pornography,” noted the disjunction between what is “pornographic” and what is “obscene,” and struck down, on First Amendment grounds, a prohibition on the former but not the latter. See id. at 334.
As is demonstrated by the foregoing discussion, although the scope of the term “obscenity” has been exhaustively examined (and even the term “indecency” has been given a specific definition by the FCC, see FCC v. Pacifica Found., 438 U.S. 726, 731-32 (1978)), the term “pornography,” unmoored from any particular statute, has never received a precise legal definition from the Supreme Court or any other federal court of appeals, and remains undefined in the federal code.4 The Supreme Court in Miller used only a footnoted dictionary reference for its own definition. See Miller, 413 U.S. at 19 n.2 (defining pornography as “a description of prostitutes or prostitution” with a secondary meaning of “a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement” (quoting Webster‘s Third New International Dictionary (1969)). Further, in the context of Loy‘s supervised release, in order to comport with First Amendment standards, the prohibition on pornography must be narrowly tailored to serve the goals of advancing Loy‘s rehabilitation and protecting the public. See Part II, supra.
C. Discussion
1. Pornography‘s Meaning
The word pornography is derived from the Greek pornographos, which meant “writing of harlots.” (Porne = harlot and graphos = writing). According to the Oxford English Dictionary (1986), pornography is defined as “1. . . . a description of prostitutes or of prostitution, as a matter of public hygiene. . . . 2. Description of the life, manners, etc., of prostitutes and their patrons; hence, the expression or suggestion of obscene or unchaste subjects in literature or art; pornographic literature or art.” According to Merriam-Webster‘s Collegiate Dictionary (1999), pornography is “1: the depiction of erotic behavior (as
Though these various definitions are instructive in a general way, they clearly lack the greater precision of the Miller test for obscenity. Unlike instances of obscenity, we could easily set forth numerous examples of books and films containing sexually explicit material that we could not absolutely say are (or are not) pornographic. One such example, as discussed below, might be Playboy, which features nudity but not sexual conduct. It is also difficult to gauge on which side of the line the film adaptations of Vladimir Nabokov‘s Lolita would fall, or if Edouard Manet‘s Le Dejeuner sur L‘Herbe is pornographic (or even some of the Calvin Klein advertisements), and we certainly cannot know whether the pornography condition is restricted only to visual materials, or whether it encompasses pure text and sound recordings. In Farrell v. Burke, No. 97 CIV. 5708(DAB), available in 1998 WL 751695 (S.D.N.Y. Oct. 28, 1998), the district court described a situation in which a parole condition prohibiting “pornography” was interpreted by a parole officer to apply equally to Playboy and to photographs of Michelangelo‘s David. Similarly, the Court of Appeals for the Seventh Circuit, examining the scope of a statutory definition of pornography, observed that it could encompass everything “from hard-core films to W.B. Yeats‘s poem `Leda and the Swan.’ ” American Booksellers Ass‘n v. Hudnut, 771 F.2d 323, 327 (7th Cir. 1985). Although the propriety of affixing the title “pornography” to any of these items could foster debate, the debate would remain undecided. Put differently, with regard to “pornography” rather than “obscenity,” we do not “know it when we see it.”
Additionally, as we observed in United States v. Crandon, 173 F.3d 122, 128 (3d Cir.), cert. denied, 120 S. Ct. 138 (1999), to avoid First Amendment infirmity, a probation condition must be “narrowly tailored” and “directly related” to the goals of protecting the public and promoting Loy‘s rehabilitation -- thus, the condition must not extend to all arguably pornographic materials, but only to those that fall into this subset. Even the government conceded in its supplemental brief that it does not know whether Playboy is part of this group, which is, in fact, a change from its position, taken during oral argument, that Playboy absolutely constituted “pornography.”5 Loy, then, can hardly be expected to be able to discern, in advance, which materials are prohibited, with no more than the constitutional standard of permissible restrictions to guide him. Cf. Laurence H. Tribe, American Constitutional Law (2d ed. 1988) § 12-29, at 1031 (“[T]he Constitution does not, in and of itself, provide a bright enough line to guide primary conduct, and . . . a law whose reach into protected spheres is limited only by the background assurance that unconstitutional applications will eventually
For all of these reasons, the pornography condition runs afoul of the due process values that the vagueness doctrine is meant to protect, and, to the extent that Loy is likely to avoid materials that are not “directly related” to the goals of rehabilitation and deterrence, the condition threatens to chill protected conduct, as well.
2. Effects of a Scienter Requirement
The government advances the intriguing argument that the condition could be interpreted so as to include a salvaging scienter requirement. But this cannot solve the problem. To begin with, although probation or parole will usually not be revoked for unknowing violations of conditions of release, unless a scienter requirement is explicitly written into the condition (which is not the case here), there is no way to be certain that one will be applied during revocation proceedings. This is because release can be revoked for reasons that have nothing to do with the “fault” of the offender, but instead are more related to protection of the public. See, e.g., United States v. Warner, 830 F.2d 651, 657 (7th Cir. 1987) (“If . . . probation‘s purposes have been frustrated, revocation is fair and appropriate even if the probationer did not willfully violate his probation conditions.“); United States v. McLeod, 608 F.2d 1076, 1078 (5th Cir. 1979) (per curiam) (“A good faith attempt to comply with a probation agreement is not a controlling factor, but only one of many factors that a District Court may consider in the exercise of its discretion to revoke probation.“).
Even if a scienter requirement were to be read into the condition, however, this construction would not save it. Though in some situations, a scienter requirement may mitigate an otherwise vague statute, see, e.g ., Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); Colautti v. Franklin, 439 U.S. 379, 395 (1978), such a requirement will not cure all defects for all purposes, see, e.g., Cramp v. Board of Pub. Instruction of Orange County, 368 U.S. 278, 286 (1961) (invalidating a loyalty oath on the ground that, notwithstanding the fact that the oath-taker was required only to affirm that he or she had never “knowingly” counseled or supported Communists, the oath was too vague to be reasonably understood); Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 138 (3d Cir. 2000) (holding that a scienter requirement cannot save a statute criminalizing “partial-birth abortion” where the definition of such a procedure is, in itself, vague); Nova Records, Inc. v. Sendak, 706 F.2d 782, 789 (7th Cir. 1983) (“A scienter requirement cannot eliminate vagueness . . . if it is satisfied by an `intent’ to do something that is in itself ambiguous.“). Indeed, a contrary rule would rob the vagueness doctrine of all of its meaning, for legislatures would simply repair otherwise vague statutes by inserting the word “knowingly.” See Richmond Med. Ctr. for Women v. Gilmore, 55 F. Supp. 2d 441, 498 (E.D. Va. 1999), aff‘d on other grounds, 224 F.3d 337 (4th Cir. 2000).
The government suggests that the term “pornography” is cabined by the fact that Loy could check with his probation officer to gauge its applicability to a particular case. However, although there is no question that “[i]n addition to the bare words of the probation condition, the probationer may be guided by further . . . instructions . . . of the . . . probation officer,” United States v. Romero, 676 F.2d 406, 407 (9th Cir. 1982), the sentencing court may not wholesaledly “abdicate[ ] its judicial responsibility” for setting the conditions of release, United States v. Mohammad, 53 F.3d 1426, 1438 (7th Cir. 1995) (invalidating an order of restitution where the sentencing court allowed the probation officer to dictate the manner of payment). A condition with no core meaning beyond “whatever is necessary for Loy‘s rehabilitation” cannot be cured by allowing the probation officer an unfettered power of interpretation, as this would create one of the very problems against which the vagueness doctrine is meant to protect, i.e., the delegation of “basic policy matters to policemen . . . for resolution on an ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); see LoFranco v. United States Parole Comm‘n, 986 F. Supp. 796, 810 (S.D.N.Y. 1997) (holding a parole condition to be unconstitutionally vague because the prohibition on association with “outlaw motorcycle gangs” delegated policymaking power to the parole officer); cf. United States v. Kent, 209 F.3d 1073, 1079 (8th Cir. 2000) (invalidating a condition requiring probation officer to determine whether the defendant should undergo counseling).7 Though it is true that “[c]ondemned to the use of words, we can never expect mathematical certainty from our language,” Grayned, 408 U.S. at 110, without a more definitive standard to guide the probation officer‘s discretion, there is a real danger that the prohibition on pornography may ultimately translate to a prohibition on whatever the officer personally finds titillating. Cf. Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (striking down a statute punishing assemblages of persons who conducted themselves in an “annoying” manner, on the ground that though a city may forbid certain forms of antisocial conduct, “[i]t cannot constitutionally do so through . . . an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed“).
4. Conclusion
To be sure, we are dealing here with an unusually broad condition. We in no way mean to imply that courts may not impose restrictions on the consumption of sexually explicit materials by persons convicted of sex crimes. Indeed, we do not expect that our holding today will greatly diminish a district court‘s discretion in imposing such conditions for the simple reason that almost any restriction upon sexually explicit material may well aid in rehabilitation and protection of the public. Only in the exceptional case, where a ban could apply to any art form that employs nudity, will a defendant‘s exercise of First Amendment rights be unconstitutionally circumscribed or chilled. A probationary condition is not “narrowly tailored” if it restricts First Amendment freedoms without any resulting benefit to public safety. Here, the condition could extend not only to Playboy magazine, but also to medical textbooks. Restricting this entire range of material is simply unnecessary to protect the public, and for this reason the condition is not “narrowly tailored.”
In sum, with no guidepost for Loy, the pornography prohibition as currently written violates due process by failing to provide Loy with adequate notice of what he may and may not do, chilling his First Amendment rights in the process. The condition “forbids . . . an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).
IV. The Challenge to the Prohibition on Unsupervised Contact with Minors
Conditions of supervised release must be “reasonably related” to the goals of deterrence, protection of the public, and rehabilitation of the defendant.
Loy claims that there is insufficient evidence in the record to support the condition barring him from having any unsupervised contact with minors. He further contends that the condition is “not `reasonably related’ to the statutory goals because no evidence was presented that [he] ever molested a child.” Finally, Loy argues that the condition, coupled with the requirement that the “supervision” come from someone other than his wife, functionally prevents him from bearing and raising children of his own, in violation of his fundamental rights to procreate and to maintain the integrity of his family.
The District Court‘s findings in support of the condition that Loy have no unsupervised contact with minors read as follows:
The Court finds it appropriate to prohibit defendant from all unsupervised
contact with minors while on supervised release. Although defendant was convicted of possession of child pornography and not of the production of such pornography, the evidence presented to this Court prior to sentencing demonstrates that the defendant has not only a significant knowledge of and interest in child pornographic materials, but also that the defendant himself has been involved in making videos of young girls. Specifically, defendant described to Special Agent Guzy how he had produced videos by hiding a camcorder in a bag and filming up the skirts of girls high school age and younger as they rode escalators at a mall, as well as how he has “hidden” camera videotapes that he made by videotaping through windows. Regardless of whether or not these videos constitute pornography, it is clear to this Court that the defendant, given his interest in child pornography and his efforts to make sexually explicit materials involving children, poses a danger to children if left alone with them. Accordingly, the Court finds it appropriate to prohibit defendant from having unsupervised contact with minors. The Court does not mean by imposition of this condition to require that defendant‘s probation officer or another law enforcement official be present whenever defendant is around minors. However, defendant is not to be alone with minors, nor is he to be alone with his wife and any minors. In other words, an adult other than defendant‘s wife must be present when defendant is in the presence of a minor . This condition of supervised release serves to: (1) protect minors who may come in contact with defendant in that defendant is not likely to attempt to make sexually explicit depictions of them if another adult is present; and (2) deter defendant from engaging in criminal conduct, also because defendant is not likely to attempt to make sexually explicit depictions of children if another adult is present.
In a footnote, the court explained that “[e]vidence presented to this Court prior to defendant‘s sentencing indicated that defendant‘s wife also has an interest in child pornography.”
Loy argues that the District Court‘s findings with respect to this condition are not supported by the record. We disagree. As the court noted, Loy twice admitted to an undercover agent that he secretly filmed up young girls’ dresses on escalators at the local mall by placing a bag containing a hidden video camera at their feet. It may also be true that, at the subsequent hearing on his motion to suppress, Loy claimed to have fabricated the story. But it is not true, as Loy argues, that because the evidence on this point is contradictory, the record does not support the District Court‘s finding.
The contradiction is of Loy‘s own creation. The District Court was free to conclude that the self-serving statements Loy made before the court were less credible than statements he made to third parties who he believed shared his interests in child pornography. Therefore, the record contained sufficient evidence to support the court‘s finding that Loy had personally made videotapes exploiting minors.
Loy next argues that even if there is sufficient evidence that he had secretly filmed up young girls’ dresses on mall escalators, “that conduct would not be addressed by the condition, because the conduct would not have taken place when Mr. Loy was alone with minors.” The argument is wholly without merit. The fact that Loy was willing to exploit minors in public places fully supports a condition barring him from being alone with them in private. Loy further contends that the condition is vague in that it might conceivably apply to casual or unavoidable contact with minors in public places. This argument is one that has a long and familiar history in the courts; associational conditions placed upon parolees and probationers
Loy also submits that the record does not support the District Court‘s finding that his wife is also interested in child pornography. Consequently, he argues, the court erroneously structured the condition to prohibit him from having otherwise unsupervised contact with minor children even if his wife is present. The court explained its order that Loy must be chaperoned by someone other than his wife when in the presence of minors as justified by the fact that “[e]vidence presented to this Court prior to defendant‘s sentencing indicated that defendant‘s wife also has an interest in child pornography.” This led the court to require that “an adult other than defendant‘s wife must be present when defendant is in the presence of a minor .” Although the evidence on which the court based its decision is fairly tenuous for such a severe restriction, especially considering its impact on a third party who has not been charged with any crime, given our deference to the District Court in factual matters, it is sufficient.9
Loy‘s final challenge to the condition is that, although he does not currently have children, the condition could potentially extend to any children he and his wife may subsequently have once he is released from prison. If so, the condition might deter him from exercising his constitutional right to procreation, see Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and, should he have children to whom the condition applies, it would interfere with his fundamental right to familial integrity, see Gruenke v. Seip, 225 F.3d 290, 303 (3d Cir. 2000).
It is well established that, although parents have a fundamental right to raise their children, this right can be overridden by the state‘s “compelling interest” in ensuring children‘s safety. See Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). Thus, convicted pedophiles may, quite legitimately, lose custody of their children or have restrictions placed on their parental rights. However, where there is insufficient evidence to support a finding that children are potentially in danger from their parents, the state‘s interest cannot be said to be “compelling,” and thus
V. Conclusion
For the foregoing reasons, we will affirm the condition restricting Loy‘s contact with minors, but will vacate the condition prohibiting Loy from possessing pornography, and remand to the District Court for further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit