Another Overbreadth Decision by the Supreme Court

State v. Higginbotham, ___ N.J. ___ (2024). Earlier this week, as discussed here, the Supreme Court unanimously invalidated a portion of a regulation due to its overbreadth, which violated the New Jersey Constitution’s free speech guarantee. Chief Justice Rabner authored that opinion. Today, in another unanimous opinion, this one by Justice Wainer Apter, the Court found unconstitutionally overbroad a portion of N.J.S.A. 2C:24(b). The Court affirmed, as modified, the decision of the Appellate Division, reported at 475 N.J. Super. 148 (App. Div. 2023), and discussed here. The Appellate Division had voided several subsections of the statute, but the Supreme Court addressed and invalidated only one of those provisions (“subsection c”). That was because defendant was not charged under those other subsections and he did not challenge those other subsections in either the Law Division or the Appellate Division.

The statutory subsection at issue criminalized endangering the welfare of a child by “portray[ing] a child in a sexually suggestive manner” and to “otherwise depict a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political, or scientific value.” To summarize, defendant had shared pictures of a particular young girl (“Christine”), fully clothed, onto which he had appended sexually graphic narratives. In two instances, he shared a collage of pictures of the girl, again fully clothed, surrounding a picture of his aroused penis beneath sweatpants.

Defendant moved to dismiss the indictment as unconstitutionally overbroad and vague, in violation of the First Amendment of the United States Constitution. The Law Division denied the motion, but the Appellate Division reversed and agreed with defendant’s overbreadth claim. Today, the Supreme Court agreed that subsection (c) was overbroad. The Court found no need to address the vagueness claim or the other subsections as to which defendant had moved.

Justice Wainer Apter traced the jurisprudence of the Supreme Court of the United States regarding obscenity and child pornography, which the First Amendment does not immunize from all regulation. But subsection (c) was not “limited to material that meets the Supreme Court’s definition of obscenity” or “limited to material that legally constitutes child pornography.” The statute did not incorporate the United States Supreme Court’s rulings but instead “strays far beyond” the parameters established by that Court. Thus, “defendant and the Appellate Division are correct to fear that, on its face, subsection (c) could criminalize photos of children on the beach, at sporting events, or performing in a dance recital or beauty pageant. Where the criminalization depends only on whether ‘any person who may view the depiction’ can use it ‘for the purpose of sexual stimulation or gratification,’ and where the only limit is that the depiction lacks ‘serious literary, artistic, political, or scientific value,’ large swaths of protected material are conceivably ensnared.”

Justice Wainer Apter concluded with a few important comments. “We agree with the State that it has a ‘compelling interest in protecting children not only from sexual and physical abuse, but also from severe emotional, psychological, and reputational harm.’ We also agree that ‘an image that associates a child with explicit sexual content . . . can haunt the child for years.’ This decision does not opine on the State’s ability to protect children from such harms. It simply holds that in criminalizing a wide swath of material that is neither obscenity nor child pornography, subsection (c) is substantially overbroad.”

Similarly, Justice Wainer Apter said, “we agree with the State that defendant ‘enjoys no First Amendment right’ to combine pictures of Christine with obscene language and distribute them over the Internet. Defendant agrees with this point as well. He expressly concedes that he ‘could be prosecuted under New Jersey’s obscenity statute.’ While defendant can be constitutionally prosecuted under New Jersey’s obscenity law, he cannot be prosecuted under a different law that is unconstitutionally overbroad.”