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Parole officers did not violate the First Amendment when they enforced a ban on the possession of pornography by a paroled sex offender, the Second Circuit U.S. Court of Appeals ruled Thursday. “Although a series of strongly-worded opinions by this court and others suggest that the term ‘pornography’ is unconstitutionally vague,” Judge Sonia Sotomayor wrote for the court, an illustrated book found in the possession of parolee Christopher J. Farrell fell within “any reasonable definition of pornography” and the parole condition was not unreasonably vague as applied to Mr. Farrell’s conduct. Judge Sotomayor was joined in the opinion in Farrell v. Burke, 05-0169-cv, by Second Circuit Judge Robert Katzmann and, sitting by designation, Judge Richard Eaton of the U.S. Court of International Trade. The decision will be published Tuesday. In 1990, Farrell pleaded guilty to three counts of sodomy in the third degree in connection with paying boys between the ages of 13 and 16 to have sex with him in his home. He served about four years in prison and agreed in writing to a number of conditions for his parole, including that he would not possess any “pornographic material.” Farrell later claimed that he was confused when he read, and then signed, the list of special conditions presented by his parole officer. In May 1996, parole officers visiting Farrell’s apartment saw a publication in a bookcase next to Farrell’s bed, entitled “Scum: The Homosexual Experience.” Although the magazine contained some photos, it largely consisted of explicit descriptions of sex acts, including sex acts between men and boys. He was arrested by the officers and a state administrative law judge presiding over a hearing later found that Scum was pornographic. The judge’s decision was affirmed without an opinion by the Commissioner of Parole in 1996. Farrell filed a challenge to the special condition under 42 U.S.C. �1983 in the Southern District, asking for a declaration that it was unconstitutional under the First and Fourteenth Amendments. Judge Deborah Batts granted the defendants’ motion to dismiss on the First Amendment claim in 1998. The case languished in the court for several years until Judge Batts finally granted summary judgment to the defendant parole officers on the remaining claims in 2004. At the circuit, where Farrell was challenging both the imposition of the special condition and its enforcement, Judge Sotomayor said the case “turns on whether the contents of ‘Scum’ are so inarguably ‘pornographic’ as to fit within any reasonable definition of that term … “ Farrell claimed that the condition was unconstitutionally vague as applied to him, that it was unconstitutionally vague on its face and that it was unconstitutionally overbroad in violation of the First Amendment. ‘AS APPLIED’ STANDARD The “as applied” challenge, the judge said, requires the court to first address whether the statute gives a person of ordinary intelligence a reasonably opportunity to know what it prohibited and, second, to determine whether the law sets “explicit standards” for those who apply it. Here, Farrell claimed, his liberty was at the whim and aesthetic judgment of the parole officers. The state defendants offered a definition of “pornography” derived from a dictionary: “if material depicts sexual conduct and is designed to cause sexual excitement … “ PLAINTIFF’S BURDEN But Judge Sotomayor said that this definition, if applied, would “cover not only materials such as Scum but also popular television shows such as Sex and the City, books such as Lady Chatterly’s Lover, and the entire ‘romance’ section of most bookstores.” The court, she said, did not disagree that the term “pornography” is inherently vague and “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.” But in making an “as applied” challenge, she said, it was up to Farrell to show that he lacked notice that the materials he possessed were included in the ban. “Whether or not the term ‘pornography’ is inherently vague, Scum fits within any reasonable understanding of the term,” she said. And even if the condition was inherently vague, Judge Sotomayor said, the question was whether it was clear “as to the way it was enforced against Farrell.” The court found that it was clear enough, given the content of the publication and Farrell’s own testimony at his revocation hearing, where he defined “pornography” as “a book that has pictures of people engaging in sex activity where the whole purpose of the book is to arouse your sexual appetite.” The court went on to find that the special condition provided adequate standards for parole officers charged with determining whether Scum was prohibited. Addressing Farrell’s other challenges, the court rejected his claim that the condition was overbroad and found that “this case presents no danger of chilling sufficient to allow a facial challenge to go forward.” Judge Sotomayor stressed that, in ruling that the facial challenge could 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.” Eugene Nathanson represented Farrell. Assistant Solicitor General Ann Zybert represented the state. Mark Hamblett is a reporter with the New York Law Journal, a Recorder affiliate.

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