OLYMPIA, Wa. – Perhaps the most famous thing ever written or said about pornography is Justice Potter Stewart’s line from his concurring opinion in the case Jacobellis v. Ohio, an observation about “hard-core pornography” which is typically truncated to “I know it when I see it.”
In context, Stewart was commenting about the difficulty of nailing down a definition of pornography – and it’s a difficulty which plagues legislators, judges and rule-makers of all sorts to this day.
Even when an institution or authority believes it has defined pornography in a solid, enforceable way, the vagueness of the definition itself can lead a court to judge it inadequate as a matter of constitutional law – which is what happened in a recent, unanimous decision by the Washington state Supreme Court, when it heard a sex offender’s challenge to the conditions of his impending release on probation.
Jameel Padilla, who was convicted of “communication with a minor for immoral purposes” and other charges, is currently serving a seven-year term at the Stafford Creek Corrections Center in Aberdeen, Washington. He is scheduled for release in 2020, and the conditions of his release have already been made known by the state.
One of those conditions is that Padilla is prohibited from accessing and/or possessing “pornographic materials” – a condition Padilla has challenged in the case as unconstitutionally vague.
The state argued that because the release condition defines the term “pornographic materials” the condition is not overly vague, but the court found the definition itself to be “vague and overbroad.”
“A condition cannot be saved from a vagueness challenge merely because it contains a definition when that definition itself suffers the same weakness,” Justice Steven C. González wrote for the court. “Moreover, an overbroad definition does not sufficiently put the offender on notice of what materials are prohibited and subjects him to possible arbitrary enforcement.”
González noted that while “a community custody condition is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct,” the definition to which Padilla would be subject covers a great deal of content which most people would not consider “pornographic.”
“Padilla notes that the prohibition against viewing depictions of simulated sex would unnecessarily encompass movies and television shows not created for the sole purpose of sexual gratification,” González wrote. “Films such as Titanic and television shows such as Game of Thrones depict acts of simulated intercourse, but would not ordinarily be considered ‘pornographic material.’ We agree. The prohibition against viewing depictions of intimate body parts impermissibly extends to a variety of works of arts, books, advertisements, movies, and television shows.”
In her arguments on behalf of Padilla, attorney Mary Swift noted the release condition would also deny Padilla the right to own material which isn’t even remotely “entertainment,” much less adult entertainment.
“Can he own a medical textbook of human anatomy,” Swift wrote in a brief. “Can he visit the Seattle Art Museum? Can he go to the public library to view a book containing Georgia O’Keeffe paintings, which arguably depict female genitalia? Can he display a print of Michelangelo’s ‘The Creation of Adam’ in his home? Can he read a magazine containing a Victoria’s Secret advertisement? One can only guess the answers to these questions, and therein lies the problem.”
While the court’s order makes clear Padilla will not be subject to the release condition as it is currently written, this does not mean he won’t be subject to any sort of porn prohibition at all, once his case has been ultimately decided.
The state Supreme Court’s order kicks the case back to the trial court for “further definition” of the term pornographic materials. At the same time, the trial court is to provide this further definition only after it first determines “whether the restriction is narrowly tailored based on Padilla’s conviction.”
