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Judge Sotomayor's (Almost) Porn Ruling

The Supreme Court nominee "knows it when she sees it" ... and when she doesn't.

Judge Sotomayor's (Almost) Porn Ruling

NEW YORK CITY – Since at least the late 1980s, it's been well established among sex researchers that sexually explicit material – pornography – in and of itself doesn't cause anti-social behavior. But it's certainly possible that that finding hadn't percolated into the New York State probation and parole system by late 1994, when Christopher Farrell, as part of his conditional release after having pled guilty to having had oral and anal sex with four minors, agreed not to "own or possess any pornographic material" while on parole for his crimes – and again in 1995, when some of Farrell's parole conditions were modified and Farrell agreed to them, including another porn ban.

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But on May 16, 1996, Farrell got a new parole officer, Corey Burke, and as part of his supervision of Farrell, Burke and his boss Gregory Freeman visited the parolee at his apartment, and according to Judge Sonia Sotomayor's 2006 opinion in the ensuing lawsuit, "noticed three publications on a bookcase near Farrell's bed: a book entitled Scum: True Homosexual Experiences, edited by Boyd McDonald; the summer 1989 issue of a magazine called My Comrade, headlined 'Gay Sex! The Shocking Truth!'; and an anthology entitled Best Gay Erotica 1996."

Farrell did have a preliminary parole revocation hearing before a Parole Board hearing officer, during which Farrell's attorney questioned Burke about what he considered to be "pornographic material" sufficient to violate Farrell's parole. Turns out the term would include Playboy magazine, Michelangelo's David (which Burke had to have described to him since he didn't know what it was) but wouldn't include books such as Best Gay Erotica 1996 which had lots of descriptions but no pictures.

Farrell, on the other hand, later told an administrative law judge at his final revocation hearing that he thought "pornography" had to be "[t]he kind of stuff that you would get in an adult book store or an x-rated movie or a book that has pictures of people engaging in sex activity where the whole purpose of the book is to arouse your sexual appetite," or he said in later testimony, "[a] book that has pictures of people engaging in sexual activity, a videotape of a similar nature and a book whose sole purpose is to pander with people's sexual arousal."

But May 26, 1996 was the last anyone on the outside saw of Christopher Farrell until Oct. 17, 1996, the expiration date of his maximum sentence under the original charges... so of course, he sued, claiming that the "Special Condition" that didn't allow him to look at porn was unconstitutionally vague as applied to the material that caused his parole to be revoked, as well as vague and overbroad on its face, and that his incarceration was Burke's fault for imposing the unconstitutional Special Condition in the first place – what's more commonly known as a "§1983 action" under Title 42 §1983 of the U.S. Code.

To Judge Sotomayor's credit, she engages in a long discussion about whether the materials Burke busted Farrell with were "pornographic," and whether that term is itself unconstitutionally vague.

"For purposes of evaluating artistic or cultural merit, the term 'pornography' is notoriously elusive," Sotomayor wrote, quoting from the Supreme Court's decision in Simmons v. Goguen. "In that context, determining whether material deserves the label of pornography is a subjective, standardless process, heavily influenced by the individual, social and cultural experience of the person making the determination. As we observed in Cabot, 'One man's pornography may be another's keepsake.'  According to some, Vladamir Nabokov's novel Lolita, or the film adaptation of the book, or 'Edouard Manet's Le Dejeuner sur L'Herbe is pornographic (or even some of the Calvin Klein advertisements).' Whether Sally Mann's photographs of her three prepubescent children, sometimes nude or partially clothed, or Robert Mapplethorpe's explicit images of sexual practices, fall within the scope of pornography are matters of considerable debate." [Citations removed here and below]

Trouble was, Farrell pled guilty to child molestation, a statute that has nothing to do with porn, so there was no sense looking to that statute for a definition of the word that Farrell could have relied upon.

Sotomayor mentioned some other courts' definitions of "pornography," including even a New York case holding the term to be "impermissibly vague." The State of New York, however, urged the judge to ignore those findings by the Third and Ninth Circuits, and argued that the meaning of the term "is determinable by application of value-free criteria," and offered one of the definitions from Webster's Third International Dictionary: "if material depicts sexual (as opposed to non-sexual) conduct and is designed to cause sexual excitement, it is 'pornography.'"

But then Sotomayor dropped her bombshell:

"We do not disagree with Farrell's argument that the term 'pornography' is inherently vague, nor do we in any way challenge the earlier cases from this Circuit and others finding that the term is insufficient to give notice to a reasonable offender of what material sweeps within its prohibition," she wrote. "But to prevail on an as-applied challenge, Farrell must persuade us that he lacked notice that the particular materials that he was punished for possessing were proscribed. Whether or not the term 'pornography' is inherently vague, Scum fits within any reasonable understanding of the term."

Indeed, Sotomayor earlier had provided this description of Scum's contents: "Numerous stories in Scum describe sex between boys. In the first story in the book, for example ('He Liked to Fuck My Face For Half an Hour'), the narrator remembers a series of sexual experiences that occurred 'when [he] was a teenager,' id. at 7. 'Sometimes we would drive around the hills and he would pretend like he was kidnapping me, tie up my body, and then fuck my face . . . .' Id. at 8. In another story, the author says he had 'sucked around from age six or seven, sucking all my elementary school male class mates, then on into High School . . .' Id. at 85. Representative stories involving underage boys include a story called 'Milwaukee Prodigy, 16, Takes On Two at a Time,' id. at 11, and a story about two boys at summer camp having sex called 'His Dick Was Sticking Out of His Pajamas.' Id. at 14-15. Scum graphically describes boys in their early teens having sexual encounters in pools, id. at 40-41, in locker rooms, id. at 42-43, in the woods, id. at 47-48, in garages, id. at 57-58, and in France, where one narrator remembers 'when [he] was 16' and his partner 'was 11-1/2,' id. at 98-99. Scum contains other examples of stories involving young boys; rather than recount them here, we merely note that the examples cited thus far are all taken from the first half of the book."

Sotomayor then considered whether the probation officers had had enough guidance from the law so as to be able to determine whether they were properly applying the anti-porn Condition, and she found that they did.

"We find that the Special Condition provided adequate standards for the parole officers to determine whether Scum was prohibited, even though its application to other materials would have been uncertain," she wrote. "For the same reasons that Farrell had notice that the condition covered Scum, so too did Burke and Freeman. No reasonable parole officer could have doubted that Farrell's possession of Scum violated the terms of his parole agreement, and therefore there was no danger that the Special Condition's enforcement would be arbitrary with regard to Scum."

Finally, the judge considered whether the "Special Condition" was vague and overbroad on its face, and Sotomayor noted that while courts generally disfavor facial challenges to statutes that "do not implicate fundamental rights," this one affected Farrell's free speech rights, and so met that first test.

Where Farrell's challenge failed, however, was its implicit claim that the Condition would have "a substantial chilling effect on protected conduct," which she ruled that it didn't, since Farrell was a convicted sex offender, and the ban on porn was "reasonably and necessarily related to the Government's legitimate interests in the parolee's activities."

In fact, "Farrell has made no allegation that he refrained from any protected conduct or altered his behavior in any way as a result of the Special Condition's vagueness," she wrote. "Farrell could have argued that the Special Condition's vagueness prevented him from engaging in protected conduct, but he has not done so."

She ruled similarly on Farrell's challenge to the Special Condition as being overbroad.

"Although there is no bar to Farrell bringing his overbreadth challenge, it fails on the merits," Judge Sotomayor ruled. "In order to prevail on an overbreadth challenge, 'the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.' As with facial vagueness challenges, we must consider not only conduct clearly prohibited by the regulation but also conduct that arguably falls within its ambiguous sweep. The purpose of an overbreadth challenge is to prevent the chilling of constitutionally protected conduct, as prudent citizens will avoid behavior that may fall within the scope of a prohibition, even if they are not entirely sure whether it does."

"Thus, the analysis of the merits of an overbreadth challenge is essentially the same as the analysis discussed above in the facial vagueness context," she concluded. "Because Farrell's First Amendment rights as a paroled sex offender were circumscribed, and because Farrell was the only person affected by the Special Condition, we cannot say that the Special Condition's overbreadth was both real and substantial in relation to its plainly legitimate sweep. Accordingly, we reject Farrell's overbreadth challenge."

But while Farrell may have lost his lawsuit, his case is instructive as to how Judge Sotomayor might handle issues of sexually explicit content as a Supreme Court judge. There's no question that her analysis in the Farrell case was thorough and fair regarding the sexual material, and at one point, she was careful to note that, "in holding that Farrell's facial vagueness challenge may not go forward, we in no way disagree with prior statements by this Court and others to the effect that conditions of parole or supervised release banning the possession of "pornography," without further definition, are facially vague. Although we are precluded from reaching the merits of Farrell's facial challenge, we cannot ignore the State's failure to provide meaningful notice of the scope of the Special Condition's prohibition or meaningful limits on an enforcing officer's discretion. We hope that greater efforts will be made in the future to define adequately the terms of parole conditions dealing with pornographic materials."

Indeed, definitions are important ... and it will be interesting to see how Sotomayor might analyze the Supreme Court's so-called "definition" of obscenity from Miller v. California when she takes her seat on the high court bench.






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Mark Kernes

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