Commonwealth v. Oakes , 401 Mass. 602 ( 1988 )

Wilkins, J.

We sustain the defendant’s challenge to the constitutionality of the statute under which he was convicted. A jury found the defendant guilty of violating G. L. c. 272, § 29A (1986 ed.), which, among other things, makes a crime of knowingly permitting a child under eighteen years of age “to pose or be exhibited in a state of nudity ... for purpose of visual representation or reproduction in any book, magazine, pamphlet, motion picture film, photograph, or picture¹

The only evidence that arguably warranted a guilty finding showed that the defendant permitted his fifteen year old stepdaughter to pose with her breasts exposed for photographs he took of her in their home. His stepdaughter was “in a state of nudity” as defined in G. L. c. 272, § 31 (1986 ed.).² The defendant argues, relying solely on the First Amendment to the Constitution of the United States, that his conduct was protected speech. He finds support for his position in New York v. Ferber, 458 U.S. 747, 764-766 (1982). We need not decide whether the Supreme Court would sustain a statute that was carefully directed against the defendant’s conduct because we conclude that, in any event, § 29A is unconstitutionally overbroad.

We start with a proposition that we would have thought not seriously debatable. Photography is a form of expression which is entitled to First Amendment protection just as the written or spoken word is protected. Photography as a means of communication and expression can be strikingly informative, as in the works of Mathew Brady and Margaret Bourke-White. It can be inspirationally expressive, as Ansel Adams demonstrated. Although not every picture may be worth a thousand words, in a First Amendment sense a picture is worth at least one.

The defendant’s conduct in permitting his stepdaughter to pose naked above the waist cannot fairly be isolated, therefore, for First Amendment purposes, from the expressive process of taking her picture. The circumstances involved at all times both conduct and speech in the First Amendment sense. First Amendment analysis does not sever conduct from speech. To do so would undercut the foundation of First Amendment protections. “A constitutional distinction between speech and conduct is specious. Speech is conduct, and actions speak” (emphasis in original). Henkin, The Supreme Court, 1967 Term — Foreword: On Drawing Lines, 82 Harv. L. Rev. 63, 79 (1968). See Griffin v. State, 396 So. 2d 152, 158 (Fla. 1981) (Sundberg, C.J., dissenting in part); L. Tribe, American Constitutional Law § 12-7, at 827 (2d ed. 1988); Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1494-1496 (1975).

In cases involving both “speech” and “nonspeech” elements, “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitation on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376 (1968) (conviction of draft card burner upheld). See United States v. Albertini, 472 U.S. 675, 687-689 (1985). There is at least a substantial question whether an important governmental interest would warrant overriding First Amendment freedoms in this case. In their own home, the defendant took nonpomographic, nonobscene photographs of his fifteen year old, consenting stepdaughter who was nude above the waist, in circumstances where no commercial or even noncommercial distribution was intended or occurred.

Even if we assume that an important governmental interest would justify punishment for the defendant’s behavior in this case, the defendant is correct in arguing that § 29A is overbroad in its reach and that the overbreadth is substantial enough to warrant striking down § 29A. See Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) (“where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep”). Cf. New York v. Ferber, 458 U.S. 747, 773-774 (1982) (overbreadthinsubstantial). The overbreadth of § 29A is substantial. It criminalizes conduct that virtually every person would regard as lawful. Section 29A, for example, makes a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool.³ Surely the First Amendment protects that kind of activity, even if what the defendant did in this case could properly be criminalized (a matter we need not decide).

The judgment is reversed and the verdict set aside. The indictment is to be dismissed.

So ordered.

1 Geperal Laws c. 272, § 29A (1986 ed.), in its entirety reads as follows: “Whoever with knowledge that a person is a child under eighteen years of age, or whoever while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity or to participate or engage in any act that depicts, describes or represents sexual conduct for purpose of visual representation or reproduction in any book, magazine, pamphlet, motion picture film, photograph, or picture shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand dollars nor more than fifty thousand dollars, or by both such fine and imprisonment.

“It shall be a defense in any prosecution pursuant to this section that such visual representation or reproduction of any posture or exhibition in a state of nudity was produced, processed, published, printed or manufactured for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.”

Section 29A was amended by St. 1987, c. 294, § 1. That amendment does not apply to this case and, if it did, it would not change the result.

2 General Laws c. 272, § 31 (1986 ed.), defines “nudity,” for the purposes of § 29A, as follows: “uncovered or less than opaquely covered post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered male genitals in a discemibly turgid state. For purposes of this defination a female breast is considered uncovered if the nipple or the nipple or areola only are covered. In the case of pre-pubertal persons nudity shall mean uncovered or less than opaquely covered pre-pubertal human genitals or pubic area.”

3 The artists who painted some of the world’s greatest paintings engaged in behavior made unlawful under § 29A if they used child models.