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AGO Opinion 98014

Child Pornography Prevention Act - constitutionality of proposed amendments
Opinion 98014

DATE: February 20, 1998

SUBJECT: Child Pornography Prevention Act - constitutionality of proposed amendments

REQUESTED BY: Kermit A. Brashear, Senator

WRITTEN BY: Don Stenberg, Attorney General

Barry Waid, Assistant Attorney General






Question Presented: Whether proposed amendments to Nebraska's

laws relating to child pornography are constitutional in light of

the First Amendment to the United States Constitution and the

corresponding provisions of the Nebraska Constitution.




Since the proposed legislation does not seek to amend the

statute criminalizing the possession of child pornography, this

opinion will not address the impact, if any, on Neb. Rev. Stat.

§ 28-813.01 (Reissue 1995). LB 1349 would amend the prohibitions

against child pornography to include compiling, for purposes of

reproduction and distribution, a compilation of multiple visual

depictions of full child nudity when manifesting a design to elicit

a sexual response in a viewer with a sexual interest in children.




Answer: A state has more freedom to proscribe works which

portray sexual acts or lewd exhibitions of genitalia by children

than other pornographic depictions. See New York v. Ferber, 458

U.S. 747, 756, 102 S.Ct. 3344, 3353 (1982). Child pornography is

not entitled to First Amendment protection provided the conduct to

be prohibited is adequately defined by state law. See Ferber, 458

U.S. 764, 102 S.Ct. 3358. Statutes regulating child pornography

are not subject to limitations placed upon statutes governing adult

pornography. One need not find that the material appeals to the

prurient interests of the average person; it is not required that

sexual conduct portrayed be done so in a patently offensive manner;

and the material at issue need not be considered as a whole. See

Ferber, 458 U.S. 747, 102 S.Ct. 3348 (quoted in State v. Saulsbury,

243 Neb. 227, 498 N.W.2d 338 (1992)). The greater latitude allowed

the government in restricting child pornography is permitted due to

the "surpassing importance" of the government's interest in

preventing the sexual exploitation and abuse of children. See

Ferber, 458 U.S. at 755, 102 S.Ct. at 3355.


While government is given great latitude when regulating child

pornography, the definition of child pornography must be limited.

See Ferber, 458 U.S. at 764, 102 S.Ct. at 3358. The conduct to be

prohibited must be adequately defined by the applicable state law,

as written or authoritatively construed. See id. The category of

"sexual conduct" proscribed must also be suitably limited and

described. See id.




In 1986, this office offered its opinion on the

constitutionality of the Child Pornography Prevention Act in

Nebraska Attorney General Opinion, No. 86035, March 13, 1986.

Subsequently, the Nebraska Child Pornography Prevention Act, as it

presently exists, has withstood constitutional challenges on the

basis of overbreadth and vagueness. See State v. Burke, 225 Neb.

625, 408 N.W.2d 239 (1987). While not being required to pass on

the facial constitutionality of the statute, the Nebraska Supreme

Court has noted that the "terms of the statute were meticulously

defined" when discussing the proscriptions of the Act. Saulsbury,

243 Neb. at 232, 498 N.W.2d at 342. The Nebraska Supreme Court has

also noted that federal legislation similar to the Nebraska statute

as it currently exists has been upheld as constitutional. See

Saulsbury, 243 Neb. 227, 498 N.W.2d 338. Consequently, this

opinion will focus only upon those amendments proposed in LB 1349.




The added language proposed in LB 1349, if adopted, should

likewise be held constitutional under the guidelines provided by

the U.S. Supreme Court and the Nebraska Supreme Court because the

conduct prohibited is adequately defined.




The additional criminal conduct proscribed by LB 1349 is

limited to material containing visual depictions of child nudity or

nudity of children under eighteen years of age. The conduct

proscribed is further limited to compilations of child nudity

"manifesting a design to elicit a sexual response in a viewer with

a sexual interest in children." By definition, compilations do not

manifest a design to elicit a sexual response in a viewer with a

sexual interest in children if compiled for a bona fide scientific,

educational, or medical purpose by a bona fide institution.




In the absence of anything indicating to the contrary,

statutory language must be given its plain and ordinary meaning.

See State v. Flye, 245 Neb. 495, 513 N.W.2d 526 (1994). In reading

a penal statute, one must give effect to the purpose and the intent

of the legislature as ascertained from the entire language of the

statute considered in its plain ordinary and sense. See State v.

Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997). Terms in the

criminal offenses defined by the proposed legislation such as

"compilation," "design," "visual depictions," and "full child

nudity" are defined by statute and are words of common usage with

readily ascertained meanings. As such, the conduct to be

prohibited has been adequately defined by the applicable state law

as required by Ferber. Individuals are given proper notice of the

prohibited conduct.




In Ferber, among the issues considered was whether the

proscription against using children in the "lewd exhibition of the

genitals" was beyond the reach of First Amendment protection. In

concluding that such displays were not constitutionally protected

the Court noted that the terms "lewd exhibition of genitals" had a

known meaning. The statute also required "scienter" or knowledge

on the part of the person inducing a child to engage in such an

exhibition. Ferber, 458 U.S. at 765, 102 S.Ct. at 3359.




As with the statute construed in Ferber, LB 1349 uses terms of

known meaning. It also requires scienter in that the prohibited

acts require a "design to elicit a sexual response in a viewer with

a sexual interest in children." In other words, the proposed

language requires a demonstrated plan or purpose to elicit a sexual

response on the part of a viewer with a sexual interest in

children. The statute also defines the meaning of "manifesting a

design."


Ferber also requires that the sexual conduct proscribed must

be suitably limited and described. The legislation must not be

overbroad or prohibit a substantial amount of constitutionally

protected conduct. The statutory language proposed suitably limits

and describes the sexual conduct proscribed within the meaning of

Ferber, 458 U.S. at 764, 102 S.Ct. at 3358.




Legislative attempts to prohibit the production or transfer of

child pornography have sometimes been constitutionally attacked as

being overbroad. The doctrine of overbreadth is predicated on the

sensitive nature of protected expressions and allows persons to

attack overly broad statutes even though the conduct of the person

making the attack is clearly unprotected. In other words, the

attack is made upon the "face" of the statute. The overbreadth of

the statute, however, must be "substantial" before the statute will

be invalidated on its face. Ferber, 458 U.S. at 769, 102 S.Ct. at

3361. The proposed amendments are not substantially overbroad.




LB 1349 limits the reach of the proscribed conduct by

exempting compilations containing multiple visual depictions of

full child nudity compiled for a bona fide scientific, educational

or medical purpose for a bona fide institution with a bona fide

interest in such. These exemptions allow scientific, medical and

educational institutions with a legitimate purpose to compile and

distribute volumes containing multiple visual depictions of child

nudity. The statute considered in Ferber did not contain such an

exemption. The United States Supreme Court has previously

considered similar limiting exemptions when overruling a

constitutional overbreadth attack upon legislation proscribing

possession and viewing of child pornography in Osborne v. Ohio, 495

U.S. 103, 110 S.Ct. 1691 (1990). The specific exceptions contained

in LB 1349 exempt bona fide institutions which compile visual

depictions of child nudity for bona fide medical, educational, or

scientific purposes. When the limiting exceptions are considered,

the scope of the statute narrows considerably. The impact of the

proposed amendments upon protected conduct would, in our opinion,

be "de minimis." See id.




Conclusion: LB 1349 seeks to amend Nebraska's child

pornography statutes by adding a prohibition against compiling for

purposes of reproduction and distribution a compilation containing

multiple visual depictions of full child nudity as well as the

subsequent sale or delivery of such compilations. In view of the

facts that the prohibition does not extend to a person merely

possessing pictures of child nudity for innocent purposes; that

scienter is required on the part of the person compiling the

multiple visual depictions; and that there are exemptions for

compilations made by bona fide institutions for bona fide

scientific, educational or medical purposes; the amendatory

language should be held constitutional.




Sincerely,




DON STENBERG

Attorney General








Barry Waid

Assistant Attorney General










¥From:£ Capitol Reception (CAPRECEP)

¥To:£ Everyone

¥Date:£ Friday, February 20, 1998 4:10 pm

¥Subject:£ AG OPINION #98014




Date: February 20, 1998




Subject: Child Pornography Prevention Act Constitutionality

of Proposed Amendments




Requested By: Kermit A. Brashear, Senator

Nebraska State Legislature




Written By: Barry Waid