Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2548-21 STATE OF NEW JERSEY, Plaintiff-Respondent, APPROVED FOR PUBLICATION March 24, 2023 v. APPELLATE DIVISION ANDREW HIGGINBOTHAM, Defendant-Appellant. __________________________ Argued February 6, 2023 – Decided March 24, 2023 Before Judges Whipple, Mawla and Marczyk. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 22-02-0502. Diane DePietropaolo Price, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Gifford and Taylor L. Napolitano, Assistant Deputy Public Defenders, and Diane DePietropaolo Price, of counsel and on the briefs). Jason Magid, Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor, attorney; Jason Magid, of counsel and on the brief). Mercedes N. Robertson, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Mercedes N. Robertson, of counsel and on the briefs). The opinion of the court was delivered by WHIPPLE, J.A.D. With limited exceptions that do not apply to this case, the First and Fourteenth Amendments to the U.S. Constitution prohibit a State from passing any law that abridges free speech. U.S. Const. amends. I and XIV. This protection is not "confined to the expression of ideas that are conventional or shared by a majority." Stanley v. Georgia, 394 U.S. 557, 566 (1969) (quoting Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688-89 (1959)). A law that prohibits protected speech, no matter how abhorrent and distasteful society considers that speech, is overbroad and cannot stand. See State v. Carter, 247 N.J. 488, 518 (2020). Defendant Andrew Higginbotham appeals from the trial court's March 17, 2022 order denying his motion to dismiss an indictment, which charged him with fifteen counts of second-degree child endangerment, N.J.S.A. 2C:24- 4(b)(4), (5)(a)(i), (5)(a)(ii); and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(b)(5)(b)(iii). These provisions were enacted in 2018 as part of the child erotica amendment to the endangerment statute. L. 2017, c. 141 A-2548-21 2 (the child erotica amendment). Finding that the statute is both unconstitutionally vague and overbroad, we reverse. The Brooklawn police began investigating defendant because he had a journal with a school picture of a young girl on the cover. Written over the photo were disturbing sexually explicit statements. Defendant provided a statement to the police, wherein he admitted the notebook belonged to him. He said it was a journal, a way to express himself. Though defendant initially denied knowing the identity of the child on the cover, he eventually told police she was his friend's daughter. Police identified her as B.R., born in 2008. Defendant spent time with B.R. when she was younger, but police found no evidence defendant ever sexually abused her. Defendant said his journal was for writing down the sexual fantasies he had about young girls. After obtaining a warrant for the data from his Facebook accounts, the police discovered conversations defendant had with four different people on Facebook in which he sent several pictures and one video of B.R., each accompanied by sexually graphic narratives describing B.R. performing oral sex on him. Every photo of B.R. defendant sent was innocuous. She was always clothed. For instance, several times he sent a picture of her wearing a A-2548-21 3 black and white striped shirt and a pink tutu. Other photos depicted B.R. in jeans and a t-shirt. However, several of these photos had explicit text superimposed over them. He once sent the photo of B.R. in the pink tutu with a 264-word sexual fantasy superimposed over it. Text on the other photos describe "wanting to molest" her. He also sent a video compilation of several photos of B.R. in a bikini, pictured with other girls also wearing bikinis, with the words "masturbating my life away" superimposed over the photos. Additionally, he twice sent a photo collage which included a photo of his aroused penis under his sweatpants, surrounded by several pictures of B.R. This collage had text superimposed over a picture of B.R., again describing her performing oral sex on him. A second collage, the top photo being his aroused penis under his sweatpants, had pictures of B.R. with text over them reading "girl lover" and "how many inches you think I could put in her little [lips emoji]." Defendant also sent another picture of underwear for young girls. He sent the picture of his sweatpants with superimposed text describing the excitement he gets when B.R. sits on his lap superimposed on it, but next sent a message saying "most [of] that actually [n]ever happened with her." Defendant additionally sent explicit messages with text alone—not superimposed over photos—in conversation with others on Facebook. These, A-2548-21 4 like text superimposed over the pictures, referred to oral sex with B.R., defendant's receiving pleasure from having her sit on his lap, and a statement about masturbating "on top of her with her little panties while she laid in her bed sleeping." Much of the explicit content, however, was superimposed over photos of B.R., as described above. Though defendant initially denied sending pictures of B.R., he then clarified he had never sent "nudes." He downloaded the pictures from B.R.'s mother's Facebook page or took them himself and wrote the text superimposed on the pictures. Defendant denied ever masturbating near B.R., adding he put that in the captions to "increase shock value." The State presented the case to the grand jury, who returned a superseding indictment charging defendant with the above-mentioned counts for portraying a child "in a sexually suggestive manner by otherwise depicting [her] for the purpose of sexual stimulation or gratification of any person who may view the depiction where [it] does not have serious literary, artistic, political or scientific value," contrary to N.J.S.A. 2C:24-4(b). Defendant moved to dismiss the indictment. The trial court denied the motion and issued a written opinion after oral argument. The trial court reasoned, while the photos themselves do not "portray a child in a sexually suggestive manner" under N.J.S.A. 2C:24-4(b), "once . . . defendant A-2548-21 5 reconstructs the original photographs and video by inserting sexual content or commentary on the reproduced picture or video, he converts that picture or video into a new depiction.[]" These depictions, the court reasoned, "portray[ed] a child in a sexually suggestive manner" because they "clearly demonstrate[d] his intention to be sexual[ly] stimulat[ed] or gratified" and "[had] no serious literary, artistic, political, or scientific value." The court also noted defendant was not being prosecuted solely for his words, but for "[t]he defaced photographs and video" he created. As to defendant's contention N.J.S.A. 2C:24-4(b) was vague and overbroad due to the phrase "portray in a sexually suggestive manner," the trial court rejected both of those arguments, determining "persons of common intelligence would not guess at the meaning of" the definition. Additionally, the statute provides officials with "guidelines to prevent arbitrary and erratic enforcement." The court added: [T]he statute informs a citizen that when he or she defaces an otherwise non-sexually explicit image of a child by adding sexually explicit language for the purpose of your or other[']s sexual gratification, he or she has created a depiction that portrays a child in a "sexually suggestive manner." Such images are violative of the endangering statute because they "otherwise depict a child for the purpose of sexual stimulation or gratification." Simply, the statute is not unconstitutionally vague. A-2548-21 6 This appeal followed on leave granted. Defendant raises the following arguments: POINT I THE TRIAL COURT ERRED IN FINDING THAT THE CONDUCT ALLEGED CONSTITUTES THE CRIME OF ENDANGERING THE WELFARE OF A CHILD CONTRARY TO N.J.S.A. 2C:24-4. POINT II ALTERNATIVELY, THE TRIAL COURT ERRED IN HOLDING THAT THE DEFINITION OF "PORTRAY A CHILD IN A SEXUALLY SUGGESTIVE MANNER" WAS NOT UNCONSTITUTIONALLY VAGUE, AND IN NOT ADDRESSING UNCONSTITUTIONALITY DUE TO OVERBREADTH IN VIOLATION OF THE FIRST AMENDMENT. I. On appeal, defendant argues his conduct was not proscribed by the child erotica amendment because the photographs of B.R. were innocuous. Alternatively, defendant argues that—on its face1—the amendment is unconstitutionally vague, as it does not provide adequate notice of proscribed conduct, and overbroad, as it infringes on protected speech. 1 At oral argument, defense counsel advanced an as-applied constitutional challenge that we do not reach. A-2548-21 7 The State charged defendant with four types of crimes under the child erotica amendment of the endangerment statute: creation; distribution; possession with intent to distribute; and simple possession of the proscribed material. Creation is prohibited by N.J.S.A. 2C:24-4(b)(4), which provides: A person commits a crime of the second-degree if he photographs or films a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner. The statute does not define "reproduced" or "reconstructed," but instructs that "reproduction" "means, but is not limited to, computer generated images." N.J.S.A. 2C:24-4(b)(1). N.J.S.A. 2C:24-4(b)(5)(a)(i) prohibits "knowingly distribut[ing] an item depicting the sexual exploitation or abuse of a child[.]" N.J.S.A. 2C:24 - 4(b)(5)(a)(ii) prohibits "knowingly possess[ing] an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item . . . ." And N.J.S.A. 2C:24-4(b)(5)(b)(iii) prohibits possession of less than 1,000 "items depicting the sexual exploitation or abuse of a child." "[I]tem depicting the sexual exploitation or abuse of a child" refers to A-2548-21 8 a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any other reproduction or reconstruction which: (a) depicts a child engaging in a prohibited sexual act or in the simulation of such an act; or (b) portrays a child in a sexually suggestive manner. [N.J.S.A. 2C:24-4(b)(1) (emphasis added).] Finally, and most importantly, to "[p]ortray a child in a sexually suggestive manner" means: (a) to depict a child's less than completely and opaquely covered intimate parts, as defined in N.J.S.A. 2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or (b) to depict any form of contact with a child's intimate parts, as defined in N.J.S.A. 2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or (c) 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. [N.J.S.A. 2C:24-4(b)(1).] A-2548-21 9 This appeal centers on the meaning of the phrase "portray a child in a sexually suggestive manner." Defendant argues it applies only to images, or pictures, that show an actual child engaged in a sex act or in a sexually suggestive pose. The State and Attorney General argue the phrase instead applies to a mental image created with words that conveys the image of a child in a sex act or in a sexual manner. Thus, resolution of this appeal begins with the statutory construction of the crimes charged, and more specifically, what is meant by the phrase "portray a child in a sexually suggestive manner." II. "When we interpret a statute, our goal is to 'effectuate legislative intent.'" State v. F.E.D., 251 N.J. 505, 526-27 (2022) (quoting Gilleran v. Twp. of Bloomfield, 227 N.J. 159, 171 (2016)). "To determine the Legislature's intent," we first consider the statute's words and afford them "their plain and ordinary meaning," because the language chosen by the Legislature is the best indicator of intent. Id. at 527 (quoting State v. J.V., 242 N.J. 432, 442-43 (2020)). "If the language is clear, the court's job is complete[,]" and it enforces the statute as written. Ibid. (quoting In re D.J.B., 216 N.J. 433, 440 (2014)). Where the statutory terms are ambiguous or "lead[] to more than one plausible interpretation[,]" we may consider extrinsic evidence, such as A-2548-21 10 legislative history, in an effort to decipher intent. Ibid. (quoting In re N.J. Firemen's Ass'n Obligation, 230 N.J. 258, 274 (2017)). Extrinsic evidence may also be used "if a plain reading of the statute leads to an absurd result or if the overall statutory scheme is at odds with the plain language." DiProspero v. Penn, 183 N.J. 477, 493 (2005). Further, "[s]tatutory language is to be interpreted 'in a common sense manner to accomplish the legislative purpose.'" State v. Olivero, 221 N.J. 632, 639 (2014) (quoting N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 236 (1996)). The common meaning of the operative terms in the phrase "portray a child in a sexually suggestive manner" renders it susceptible to more than one plausible interpretation. The ordinary meanings of the terms "portray" and "depict" support numerous tenable interpretations. Thus, we consider legislative history to decipher the Legislature's intent in adopting this phrase. F.E.D., 251 N.J. at 527. In 2017, the Legislature amended the definition of child pornography, "an item depicting the sexual exploitation or abuse of a child," to include items which "portray[] a child in a sexually suggestive manner." S. L. & Pub. Safety Comm. Statement to S. 3219 1 (June 15, 2017). According to the accompanying Statement, the amendment was intended to "criminalize[] the possession and distribution of 'child erotica,'" which the Statement says, A-2548-21 11 "refers to images that depict nearly naked, suggestively-posed, and inappropriately sexualized children." Ibid. The Legislature provided no other guidance on what qualifies as child erotica. 2 However, there are legally—and constitutionally—significant distinctions between child erotica, child pornography, and obscenity. III. We presume statutes are constitutionally valid. State v. Buckner, 223 N.J. 1, 14 (2015). The party challenging the validity of the statute bears the "heavy burden" of proof. Ibid. (quoting State v. Trump Hotels & Casino Resorts, Inc., 160 N.J. 505, 526 (1999)). "Where a statute 'criminalizes expressive activity,' we construe it 'narrowly to avoid any conflict with the constitutional right to free speech.'" State v. B.A., 458 N.J. Super. 391, 407 (App. Div. 2019) (quoting State v. Burkert, 231 N.J. 257, 277 (2017)). A criminal statute challenged as vague is subject to "sharper scrutiny and given more exacting and critical assessment under the vagueness doctrine than civil enactments." State v. Cameron, 100 N.J. 586, 592 (1985). "A statute is facially or perfectly vague if 'there is no conduct that it proscribes with 2 The Attorney General asserts testimony from committee hearings prior to the amendment's passage provides clarifying evidence of legislative intent. However, the testimony's usefulness is limited because it represents the statement of an individual, not the legislative body. A-2548-21 12 sufficient certainty.'" State v. Saunders, 302 N.J. Super. 509, 521 (App. Div. 1997) (quoting Cameron, 100 N.J. at 593). Overbroad statutes, by contrast, "suffer from a different flaw. They invite 'excessive governmental intrusion into protected areas' by 'extend[ing] too far.'" Carter, 247 N.J. at 518 (alteration in original) (quoting Karins v. Atlantic City, 152 N.J. 532, 544 (1998)). As our New Jersey Supreme Court has explained, "[t]he two claims differ analytically[.]" Ibid. The vagueness concept . . . rests on principles of procedural due process; it demands that a law be sufficiently clear and precise so that people are given fair notice and adequate warning of the law's reach. The overbreadth concept, on the other hand, rests on principles of substantive due process; the question is not whether the law's meaning is sufficiently clear, but whether the reach of the law extends too far. The evil of an overbroad law is that in proscribing constitutionally protected activity, it may reach farther than is permitted or necessary to fulfill the state's interests. [Ibid. (alteration in original) (quoting Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983)).] "If a statute 'is susceptible to two reasonable interpretations, one constitutional and one not,' [we] assume[] that the Legislature would want" the statute to be interpreted in a manner that conforms to the Constitution. Carter, 247 N.J. at 513 (quoting State v. Pomianek, 221 N.J. 66, 90-91 (2015)). "In appropriate cases, [we have] the power to engage in 'judicial surgery' or A-2548-21 13 narrow construction of a statute to free it from constitutional doubt or defect." N.J. State Chamber of Com. v. N.J. Election L. Enf't Comm'n, 82 N.J. 57, 75 (1980). "However, this procedure applies only 'if we fairly can do so'" based on the Legislature's purpose in enacting the statute. State v. Grate, 220 N.J. 317, 335 (2015) (quoting State v. Fortin, 198 N.J. 619, 631 (2009)). Due to the obscenity and child pornography jurisprudence developed over the past sixty-six years by the Supreme Court of the United States, we conclude we cannot surgically resect the statute here to free it from doubt or defect. IV. The First Amendment to the United States Constitution prohibits the federal government from passing any law that abridges free speech. U.S. Const. amend. I.3 That said, while the right to free speech is guaranteed, it is not unlimited. As the Court said in Chaplinsky v. New Hampshire: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ["]fighting["] words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 3 The First Amendment is made applicable to the States by the Fourteenth Amendment. U.S. Const. amend. XIV. A-2548-21 14 [315 U.S. 568, 571-72 (1942) (footnotes omitted).] These forms of speech serve "no essential part of any exposition of ideas" and have "such slight social value" that "any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id. at 572. While the Court has always recognized the First Amendment does not protect certain types of speech, it was not until 1957 that the Court directly addressed whether the government may criminalize the public advertising, publication, and distribution of obscene material. Roth v. United States, 354 U.S. 476, 481 (1957). Finding the government could, the Court reiterated obscene material does not relate to the exchange of ideas, has virtually no social importance, and any importance it may have is outweighed by the social interest in order. Id. at 484-85. The Court then attempted to define obscenity by explaining material "is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion" that "goes substantially beyond customary limits of candor in description or representation . . . ." Id. at 487 n.20 (quoting Model Penal Code § 207.10(2) cmt. at 10 (Am. L. Inst., Tentative Draft No. 6, 1957)). Material about sex that has an artistic, literary, or scientific value does not fall within that definition. Id. at 487. A-2548-21 15 Twelve years later, in Stanley v. Georgia, 394 U.S. 557, 565 (1969), the Court qualified the government's ability to regulate obscenity by holding that free speech and privacy rights protect the viewing of obscene material in one's home. Georgia had enacted a statute criminalizing possession of obscene material. Id. at 558. The Court found the statute, without valid justification, violated the right to privately view material of one's choice implicit in the First and Fourteenth Amendments. Id. at 565. The Court further recognized States have a valid interest in regulating the public dissemination of obscenity, as explained in Roth, but Georgia's attempt to regulate what a person reads or views in his or her home exceeded that interest. Ibid. As such, the statute amounted to an unconstitutional attempt to control thought. Id. at 565-66. The Court explained: [W]e think that mere categorization . . . as 'obscene' is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. [Id. at 565.] A-2548-21 16 Georgia's attempt to justify the statute based on the "effects of obscenity" "misconceive[d] what it is that the Constitution protects." Id. at 566. The First Amendment "guarantee is not confined to the expression of ideas that are conventional or shared by a majority." Ibid. Nor is it limited to material that is deemed moral or ideologically worthy. Ibid. "Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." Ibid. Georgia's alternative rationale—that viewing obscene material may lead to crime or deviant behavior—was speculative and unsupported by empirical evidence. Id. at 566. "[T]he State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits." Id. at 567. In Miller v. California, 413 U.S. 15, 23-24 (1973), the Court attempted to clarify the definition of obscene material in relation to a California statute that made it a misdemeanor to distribute obscenity. In reaffirming its ruling that States may regulate the public dissemination of obscenity, the Court told us "States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a A-2548-21 17 significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Id. at 18-19 (footnote omitted). But such statutes "must be carefully limited" to avoid infringement on protected speech. Id. at 23-24. The Court gave a revised test for obscenity: The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable State law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [Id. at 24 (internal citations omitted).] The community standard is not a national standard, but rather, a local one. Id. at 30. Examples of material that may fall under part (b) include "[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated" and "[p]atently offensive representation[s] or descriptions of masturbation, excretory functions, a nd lewd exhibition of the genitals." Id. at 25. Material that has "serious literary, artistic, political, or scientific value" will remain protected by the First Amendment, "regardless of whether the government or a majority of the people approve of the ideas these works represent." Id. at 34. A-2548-21 18 Nine years later, in New York v. Ferber, 458 U.S. 747 (1982), the Court issued its first decision directly addressing child pornography. The New York statute challenged in that case "prohibit[ed] persons from knowingly promoting sexual performances by children under the age of [sixteen] by distributing material which depict[ed] such performances," regardless of whether the material was obscene. Id. at 749. The statute defined "sexual performance" as any performance that portrayed sexual conduct with a child less than sixteen years of age. Id. at 750. "Sexual conduct" referred to traditional sex acts as well as lewd exhibition of genitals. Ibid. The Court recognized, "[l]ike obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy." Id. at 756. However, the Court concluded that "States are entitled to greater leeway in the regulation of pornographic depictions of children" than permitted under the Miller obscenity standard, and it gave five reasons to support that conclusion. Ibid. First, the Court said, States have a "compelling" interest in "safeguarding the physical and psychological well-being of a minor." Id. at 756-57 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)). A democratic society depends upon "the healthy, well-rounded A-2548-21 19 growth of young people into full maturity as citizens." Id. at 757 (quoting Prince v. Massachusetts, 321 U.S. 158, 168 (1944)). The New York Legislature had determined "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child[,]" and that determination was supported by evidence. Id. at 758. Thus, "[t]he prevention of sexual exploitation and abuse of children constitute[d] a government objective of surpassing importance." Id. at 757. Second, distribution of material depicting sexual activity of children "is intrinsically related to the sexual abuse of children in at least two ways": the material serves as a "permanent record of the children's participation" in the sexual activity; and the harm that flows from that participation is "exacerbated" by continued circulation of the material. Id. at 759. Thus, to "effectively control[]" production, "the distribution network . . . must be closed . . . ." Ibid. Prosecuting only those who produce the images is not enough. Ibid. "The most expeditious if not the only practical method" that law enforcement may have "to dry up the market" may be the imposition of "severe criminal penalties on persons selling, advertising, or otherwise promoting the product." Id. at 760. A-2548-21 20 The Miller obscenity standard did not "reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." Id. at 761. The Court explained the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value." [Ibid. (alterations in original) (citation omitted).] The third reason why the Court found the Miller standard did not adequately address the child pornography issue was that the Miller standard did not recognize the economic motive underlying child pornography. Ibid. The Court explained the economic motive was an "integral part of the production of" child pornography, and all States criminalized child sexual abuse. Ibid. Thus, the production and promotion of child pornography was the promotion and recording of a crime. Ibid. "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid A-2548-21 21 criminal statute." Id. at 761-62 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)). The fourth reason why Miller did not adequately address child pornography was that there was "exceedingly modest, if not de minimis" value in permitting children to participate in performances of sexual activity. Id. at 762. The Court considered it "unlikely" the inclusion of children in sex acts would be a necessary or important part of any literary, educational, or scientific performance. Ibid. If it were, young adults could play the role. Id. at 763. Fifth and finally, the Court said "[r]ecognizing and classifying child pornography as a category of material" not entitled to First Amendment protection was consistent with precedent, which focused on the content of the speech in determining whether it was protected speech. Ibid. The Court explained: [I]t is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. [Id. at 763-64.] A-2548-21 22 Proscribed speech must be "adequately defined[,]" however, and in the context of children engaged in sexual activity, the material must "visually depict sexual conduct by children below a specified age. The category of 'sexual conduct' proscribed must also be suitably limited and described." Id. at 764 (footnote omitted). Accordingly, the Court "adjusted" the Miller standard for purposes of child pornography, explaining: The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. [Id. at 764-65 (citations omitted).] The Court concluded the New York statute was not unconstitutionally overbroad because it was premised on the State's compelling interest in A-2548-21 23 protecting children from sexual exploitation and was appropriately limited to adequately described conduct. Id. at 765. Thereafter, in Osborne v. Ohio, 495 U.S. 103, 109-11 (1990), the Court expanded the State's ability to control child pornography by permitting the proscription of possession in one's home. The Ohio statute criminalized the possession of an image of a nude child by a person who was not the child's parent or guardian, unless the parent or guardian provided written consent or the image had a "bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose . . . ." Id. at 106. Based on the purpose of the statute and the exceptions to it, the Ohio Supreme Court read into the statute a requirement that the image "involve[] a lewd exhibition or graphic focus on a minor's genitals," as opposed to portraying nudity, which was generally protected speech. Id. at 107. The Ohio Legislature justified the statute on the ground the child pornography market was "driven underground" in the wake of Ferber, which made it difficult, "if not impossible, to solve the . . . problem by only attacking production and distribution." Id. at 110. Precluding possession would thus aid in elimination of the market. Id. at 109-10. The Court found this rationale reasonable. Id. at 110-11. A-2548-21 24 In so ruling, the Court distinguished Stanley, where it held adults have a privacy right in the possession of obscene material inside the home. Id. at 109. In Osborne, unlike in Stanley, the purpose of the statute was not to regulate the private viewing of material that the State believed "would poison the minds of its viewers," but rather, "to protect the victims of child pornography" and eliminate the child pornography market. Ibid. As the Court explained in Ferber, the value of child pornography was "exceedingly modest, if