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A man convicted of possessing child pornography cannot be barred after his release from prison from possessing any pornography — including legal, adult pornography — because the definition of the term “pornography” is so broad that the defendant himself wouldn’t know how to comply with such a condition, a federal appeals court has ruled. “We in no way mean to imply that courts may not impose restrictions on the consumption of sexually explicit materials by persons convicted of sex crimes,” Chief U.S. Circuit Judge Edward R. Becker wrote in United States v. Loy. “Indeed, we do not expect that our holding today will greatly diminish a district court’s discretion in imposing such conditions for the simple reason that almost any restriction upon sexually explicit material may well aid in rehabilitation and protection of the public,” Becker wrote. But Ray Donald Loy’s case was “exceptional,” Becker said, because the ban imposed by U.S. District Judge Alan N. Bloch of the Western District of Pennsylvania “could apply to any art form that employs nudity.” Such a broad restriction during a criminal defendant’s post-prison period of “supervised release” violates the defendant’s First Amendment rights, Becker found, because it is not “narrowly tailored” to ensure that the freedoms it restricts are directly related to rehabilitation or public safety goals. “Here, the condition could extend not only to Playboy magazine, but also to medical textbooks. Restricting this entire range of material is simply unnecessary to protect the public, and for this reason the condition is not narrowly tailored,” Becker wrote in an opinion joined by U.S. Circuit Judge Richard L. Nygaard and visiting 8th Circuit Senior Judge Will L. Garwood. Loy pleaded guilty and was sentenced to 33 months in prison after he was snared in a sting operation that used classified ads in sexually explicit magazines to lure readers to engage in trading child pornography. Unwittingly, Loy responded to an undercover agent with a letter that said he and his wife collected child pornography and urged a telephone call to discuss trades. In their conversation, Loy said that he made his own tapes by carrying a hidden camera that he used to film up the skirts of young girls as they rode on escalators in a mall. Ultimately, Loy asked the agent for a copy of a video titled “Bath Time” and was arrested soon after he took it back to his home from a post office box. In a raid on his house, agents seized 50 videos, 15 computer disks and several magazines containing child pornography. In his appeal, Loy challenged only the conditions of his supervised release that barred him from possessing any sort of pornography and from having unsupervised contact with minors. Becker found that although the scope of the term “obscenity” has been exhaustively examined by the courts, the term “pornography” has not. Instead, Becker said, the word pornography is “unmoored from any particular statute” and “has never received a precise legal definition from the Supreme Court or any other federal court of appeals, and remains undefined in the federal code.” In the context of Loy’s supervised release, Becker said, in order to comport with First Amendment standards, the prohibition on pornography “must be narrowly tailored to serve the goals of advancing Loy’s rehabilitation and protecting the public.” Becker found that the word pornography is derived from the Greek “pornographos” which meant “writing of harlots” (“porne” meaning “harlot” and “graphos” meaning writing”). According to the Oxford English Dictionary, Becker said, pornography is defined as “1. a description of prostitutes or of prostitution, as a matter of public hygiene … . 2. Description of the life, manners, etc., of prostitutes and their patrons; hence, the expression or suggestion of obscene or unchaste subjects in literature or art; pornographic literature or art.” According to Merriam-Webster’s Collegiate Dictionary, he noted, pornography is “1: the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement; 2: material (as books or a photograph) that depicts erotic behavior and is intended to cause sexual excitement; 3: the depiction of acts in a sensational manner so as to arouse a quick intense emotional reaction.” Other dictionaries offered even more variations, Becker noted, and showed that the term “pornography” is simply not as precise as the term “obscenity,” which has been defined by the U.S. Supreme Court. “Unlike instances of obscenity, we could easily set forth numerous examples of books and films containing sexually explicit material that we could not absolutely say are (or are not) pornographic,” Becker wrote. One such example, he said, is Playboy magazine, “which features nudity but not sexual conduct.” “It is also difficult to gauge on which side of the line the film adaptations of Vladimir Nabokov’s “Lolita” would fall, or if Edouard Manet’s [painting] “Le Dejeuner sur L’Herbe” is pornographic (or even some of the Calvin Klein advertisements), and we certainly cannot know whether the pornography condition is restricted only to visual materials, or whether it encompasses pure text and sound recordings,” Becker wrote. “Although the impropriety of affixing the title ‘pornography’ to any of these items could foster debate, the debate would remain undecided. Put differently, with regard to ‘pornography’ rather than ‘obscenity,’ we do not ‘know it when we see it,’ ” Becker wrote. As a result, Becker found that the condition that Judge Bloch imposed on Loy ran afoul of the First Amendment. “Even the government conceded in its supplemental brief that it does not know whether Playboy is part of this group, which is, in fact, a change from its position, taken during oral argument, that Playboy absolutely constituted pornography,” Becker wrote. As a result, he said, a defendant such as Loy “can hardly be expected to be able to discern, in advance, which materials are prohibited, with no more than the constitutional standard of permissible restrictions to guide him.” In Loy’s case, Becker found, “to the extent that the condition might apply to a wide swath of work ranging from serious art to ubiquitous advertising, the condition is overly broad and violates the First Amendment. To the extent that its breadth is unclear, it is unconstitutionally vague.” But Becker found that Judge Bloch could still impose some restriction if it were modified to make it more clear. “There is no question that the District Court could, perfectly consonant with the Constitution, restrict Loy’s access to sexually oriented materials, so long as that restriction was set forth with sufficient clarity and with a nexus to the goals of supervised release,” Becker wrote. “Further, the Constitution would not forbid a more tightly defined restriction on legal, adult pornography, perhaps one that clarified whether it extended non-visual materials, or that borrowed applicable language from the federal statutory definition of child pornography,” he wrote. In the final sections of the opinion, Becker rejected Loy’s claim that the prohibition against contact with minors was also legally unsound since it could be read to bar him from participating in rearing his own children. Since Loy is currently childless and the supervised release is just three years long, Becker found that it was unlikely to affect his child-rearing and that, if he does have children, the lower court was unlikely to read the condition as extending that far. Becker also found that the condition was not unconstitutionally vague. “Certainly accidental or unavoidable contact with minors in public places is not forbidden by the condition; however, should Loy deliberately seek out such contacts, they would cease to be ‘casual’ or ‘unavoidable’ and would fall within the condition’s scope,” Becker wrote.

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