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Precedential or Non-Precedential: Docket 99-3827.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.
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Precedential or Non-Precedential: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
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)
Marketa Sims, Esq. (Argued) Office of Federal Public Defender 960 Penn Avenue 415 Convention Tower Pittsburgh, PA 15222 Attorney for Appellant
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 possessing “all forms of pornography, including legal adult pornography.” The second condition bars Loy from having unsupervised contact with minor children, and further specifies that the requisite supervision must come from someone other than his wife. Loy challenges these conditions, arguing that the pornography condition is vague and overbroad, and that the condition restricting contact with minors is not only vague and unsupported by the record, but could also potentially inhibit Loy‘s ability to have and raise his own children, in violation of his rights of procreation and familial integrity.
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 been made to enforce its terms. We disagree, holding that the challenge is properly made at this time. We therefore turn to the merits of Loy‘s arguments, and conclude that the prohibition on pornography is unconstitutionally vague because it fails to provide any method for Loy or his probation officer to distinguish between those items that are merely titillating and those items that are
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,
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 of twelve and thirteen-year-old children engaged in sexually explicit conduct.
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
II. Standard of Review
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
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 him was barred from lodging a facial attack on the condition as a defense in a revocation proceeding. See id. at 846-47. In so doing, we observed that “the federal courts have uniformly permitted defendants sentenced to probation to challenge the validity of their probation conditions on direct appeal.” Id. at 846 n.16. In United States v. Ofchinick, 937 F.2d 892 (3d Cir. 1991), we reaffirmed Stine, holding that a challenge to a condition of supervised release mounted immediately after the sentence met the Article III test for ripeness. Our holding in Ofchinick was based in part on the fact that, if the defendant waited until revocation proceedings to challenge the condition, he would likely be found to have waived his right to object. See id. at 897. In that case, we characterized as “illogic[al]” the government‘s position that a probationer must risk incarceration in order to challenge a condition. See id. at 897 n.5.
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.
b. Fitness for Judicial Review
An examination of the “fitness for judicial review” of a particular claim requires that a court look at the nature of
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.
2. Standing
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
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
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
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 that are victimized in the production of child pornography; and (2) deter defendant from engaging in additional criminal conduct.” Loy claims that the District Court‘s order is unconstitutionally vague, because “[t]he term `pornography’ lacks a legal definition” and “fails to give Mr. Loy notice of which materials he may not possess.”
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
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 “lewd exhibition of the genitals,” but a distinction must be made between exhibitions that are lewd and those that are not lewd, because “nudity alone is not enough to make material legally obscene.” United States v. Various Articles of Merchandise, Schedule No. 287, 230 F.3d 649, 657 (3d Cir. 2000) (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)).3 And, as we recently held, the Miller test‘s protection for works of serious political value “is broad enough to encompass that which might tend to bring about `political and social changes.’ ” Various Articles of Merchandise, 230 F.3d at 658 (holding that nudist magazines are not obscene because, inter alia, they “champion nudists’ alternative lifestyle“).
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
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.
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 in pictures or writing) intended to cause sexual excitement 2: material (as books or a photograph) that depicts erotic behavior and is intended to cause sexual excitement 3: the depiction of acts in a sensational manner so as to arouse a quick intense emotional reaction.” The Funk & Wagnalls New Standard Dictionary of the English Language (1941) defines pornography as “1. Description of prostitutes and of prostitution as related to public hygiene. 2. The expression or suggestion of the obscene in speaking, writing, etc.; licentious art or literature.” The Webster‘s Third New International Dictionary definition was quoted in Part III.B, supra.
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),
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
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
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).
3. Delegation of Power to the Probation Officer
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 . . .
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.”
Thus, in Loy‘s case, to the extent that the condition might apply to a wide swath of work ranging from serious art to ubiquitous advertising, the condition is overly broad and violates the First Amendment. To the extent that its breadth is unclear, it is unconstitutionally vague. That said, there is no question that the District Court could, perfectly consonant with the Constitution, restrict Loy‘s access to sexually oriented materials, so long as that restriction was set forth with sufficient clarity and with a nexus to the goals of supervised release. Further, the Constitution would not forbid a more tightly defined restriction on legal, adult pornography, perhaps one that clarified whether it extended non-visual materials, or that borrowed applicable language from the federal statutory definition of child pornography located at
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
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 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
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 interference in the family relationship is unconstitutional. See id. at 1126. Loy, after approximately nine years of marriage, is childless; his term of supervised release will last only three years. At most, any children he might have upon his release would be two years old by the time the term ended. There is certainly a legitimate question as to whether the
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