Farrell v. Burke

Decision Date31 May 2006
Docket NumberDocket No. 05-0169 CV.
Citation449 F.3d 470
PartiesChristopher J. FARRELL, Plaintiff-Appellant, v. Corey BURKE and Gregory Freeman, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Eugene B. Nathanson, New York, New York, for Plaintiff-Appellant.

Ann P. Zybert, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, on the brief; Michael Belohlavek, Senior Counsel, Division of Appeals & Opinions, Daniel Chepaitis, Assistant Solicitor General, of counsel), New York, New York, for Defendants-Appellees.

Before: SOTOMAYOR and KATZMANN, Circuit Judges, and EATON, Judge.*

SOTOMAYOR, Circuit Judge.

The principal question presented by this appeal is whether a special condition of parole that prohibited the possession of "pornographic material" would have given notice to a reasonable parolee who had been convicted of sexual crimes involving minors, or his parole officer, that the condition prohibited possession of the book Scum: True Homosexual Experiences, which contains sexually explicit pictures and lurid descriptions of sex between men and boys. Plaintiff-appellant Christopher J. Farrell appeals from a December 9, 2004 judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, J.) granting summary judgment to defendants-appellees Corey Burke and Gregory Freeman (collectively, "the State"), the New York State parole officers who arrested Farrell for violating his parole agreement when they discovered Scum and other publications in his apartment. Farrell brought suit pursuant to 42 U.S.C. § 1983, claiming that Burke and Freeman violated his constitutional rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment by imposing and enforcing the special condition.

Although a series of strongly-worded opinions by this Court and others suggest that the term "pornography" is unconstitutionally vague, we hold that Scum falls within any reasonable definition of pornography and that the parole condition is therefore not unconstitutionally vague as applied to Farrell's conduct. Because Farrell's as-applied vagueness challenge fails, and because he cannot demonstrate that the no-pornography condition threatened to chill the exercise of substantial constitutionally protected conduct, we do not reach the question of whether the condition was impermissibly vague on its face. We also reject Farrell's First Amendment overbreadth challenge.


On several occasions between November 1988 and January 1990, Farrell paid four boys between the ages of 13 and 16 to have anal and oral sex with him at his home. On October 26, 1990, in New York state court, Farrell pled guilty to and was convicted of three counts of sodomy in the third degree. Farrell admitted that he had engaged in the charged conduct.

On the same day he pled guilty, Farrell was sentenced to three indeterminate prison terms of one to three years' imprisonment. He served almost four years and was conditionally released on parole on October 17, 1994, pursuant to New York Penal Law § 70.40(1)(b). His parole supervision was to expire on October 17, 1996. On October 18, 1994, the day after his release, Farrell agreed in writing to a set of parole conditions. These included standard conditions imposed on all parolees, see N.Y. COMP. CODES R. & REGS. tit. 9, § 8003.2(a)-(k), as well as special conditions imposed by Farrell's parole officer at the time, Clifford J. Parris. One of the special conditions stated: "I will not own or possess any pornographic material." Farrell read the conditions and attested by his signature that he understood them. He explained his failure to ask for clarification of the no-pornography condition in the following terms: "When I read the list of conditions, there was nothing about it that seemed confusing to me so I didn't ask questions about it."

Five months later, on March 28, 1995, Farrell signed a modified set of special conditions imposed by his parole officer at that time, Roberto Martinez. It included the same special condition prohibiting the possession of "pornographic material" (the "Special Condition"). Again Farrell certified that he had read and understood the conditions, and again he asked for no clarification of the meaning of "pornographic material." On May 16, 1996, Farrell was placed under the supervision of a new parole officer, defendant Corey Burke. Burke told Farrell that the special conditions still applied, and again Farrell did not ask for clarification. While on parole, Farrell reported regularly to his parole officer. At no time between the signing of the parole agreement and his arrest did he ask his parole officer to clarify the meaning of the no-pornography condition.


On May 29, 1996, Burke went to Farrell's workplace and found that Farrell was not there. That night, Burke and defendant Gregory Freeman, Burke's supervising parole officer, went to Farrell's apartment looking for him. In Farrell's living room, which also served as his bedroom, the officers questioned Farrell about his whereabouts that day. During the questioning, the officers noticed three publications on a bookcase near Farrell's bed: a book entitled Scum: True Homosexual Experiences, edited by Boyd McDonald; the summer 1989 issue of a magazine called My Comrade, headlined "Gay Sex! The Shocking Truth!"; and an anthology entitled Best Gay Erotica 1996. Freeman looked through the books, saw sexually explicit pictures, and arrested Farrell for violating his parole agreement. He did not read the text of the publications prior to arresting Farrell.

Scum contains about twenty-five pictures of men. In all but three of the pictures, the men are nude. In about half of the pictures, the men's penises are erect, and some of the men appear to be touching themselves. A disclaimer on page four of Scum states that "[a]ll models are over 18." The State has not challenged this disclaimer.

The text of Scum consists almost entirely of erotic stories describing sexual encounters in intimate detail. Because this case turns on whether the contents of Scum are so inarguably "pornographic" as to fit within any reasonable definition of that term, it is necessary to describe with some thoroughness what the book depicts and how it is depicted. The text on the back cover of Scum gives a fair picture of its contents:

Scum is the thirteenth in Boyd McDonald's best-selling series of Straight to Hell chapbooks. Like earlier titles, (Flesh, Meat[,] Cum, Juice, Skin, Wads, Cream, Smut, Filth, Sex, Raunch, Lewd), Scum contains dozens and dozens of true homosexual experiences. Men from all over write the naked, shameless truth in stories like, "Youth Displays Shit-Hole for Dog to Sniff, Lick," "Soldiers Grope Each Other in Back Row of Theater," "Pushes Partner's Face into Puddle of Piss," "Army Officer Sniffs Soldier's Jockey Shorts," "Suck Stops on the Highways of Vermont," "US Marine Displays Dick, Butt to Cubans," "Wipes Asshole With His Tongue, Then Screws It With His Tool," and "Cleric Fucks Army Vet's Mouth." Plus there's Boyd McDonald's incomparable "Sex in the News," and plenty of sexy photos, making Scum one of the hottest reads ever!

The stories that compose Scum contain virtually no descriptions of anything other than sex. The "Sex in the News" sections referenced on the back cover include "news" stories such as "Man Sucks Dick In Front of Café," id. at 66, and "Man, 27, Prowls Naked in Ashtabula." Id. at 98.

A number of the stories in Scum explicitly describe sex between men and boys. One involves a male "in his late teens" and another male who "looked to be about 60" having sex with multiple other men in a theater bathroom. Id. at 20-22. Another story involves a boy of 14 "being taken into and kicked out of homes of various sugar daddies." Id. at 27. A third story notes a news story about a 13-year-old boy who impregnated his 17-year-old baby sitter. Id. at 31. The author suggests that he would like to pay the 13-year-old for sex:

If I was the baby sitter for a 13-year-old boy who wanted to get his rocks off, I could provide him with the same sort of pleasure — or better — and the consequences would be that he would not have to pay child support, he might be a little richer himself, and a child would not be produced.

Id. Elsewhere, a narrator remembers "[w]hen [I was] 9 or 10, my first major mystery occurred. Upon rounding a corner, I found Red spitting on his `thing' . . . . So my neighbor Red explained the mystery, instructing me how to pump myself up and down." Id. at 81. Other narrators appear to take particular pride in recounting the significantly lower ages of their partners. "I was 49 yrs., he 20-1/2 and a great bed partner." Id. at 86. "I was 52 and he only 26." Id. at 88. Another narrator regrets that one partner has fully grown up ("He is 25 now and has lost his earlier cuteness") before turning to describe another partner who "first started having sex — and liking it — with his stepfather when he was 9 years old and has been turning tricks since his teens." Id. at 102.

Numerous stories in Scum describe sex between boys. In the first story in the book, for example ("He Liked to Fuck My Face For Half an Hour"), the narrator remembers a series of sexual experiences that occurred "when [he] was a teenager," id. at 7. "Sometimes we would drive around the hills and he would pretend like he was kidnapping me, tie up my body, and then fuck my face . . . ." Id. at 8. In another story, the author says he had "sucked around from age six or seven, sucking all my elementary school male class mates, then on into High School . . ." Id. at...

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