State v. Cinel

• Decision Date: 30 November 1994
• Citation: 646 So.2d 309
• Parties: 94-0942 La
• Court: Louisiana Supreme Court

Page 309

646 So.2d 309

94-0942 La. 11/30/94

STATE of Louisiana v. Dino CINEL.

No. 94-KA-0942.

Supreme Court of Louisiana.

Nov. 30, 1994.

Rehearing Denied Jan. 26, 1995.

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Valentin M. Solino, New Orleans, for applicant.

Edwin A. Stoutz, Jr., Stoutz & Charbonnet, New Orleans, Franz L. Zibilich, Lee, Martiny & Caracci, Metairie, for respondent.

Dino Cinel, pro se.

[94-0942 La. 1] WILLIAM NORRIS, III, Justice Pro Tempore ¹.

The State appeals a District Court judgment declaring unconstitutional the pornography involving juveniles statute, La.R.S. 14:81.1. The District Court, in oral reasons, rejected the whole statute on the basis that subsection 81.1 D, which excludes lack of knowledge of the performer's age as a defense, infringed on free speech rights protected by the First Amendment. For the reasons expressed, we find that while subsection 81.1 A(3) properly requires scienter of the performer's minority, subsection 81.1 D impermissibly removes this requirement. Subsection 81.1 D is, however, severable and the District Court erred in invalidating the entire statute on its face. We remand the case for further proceedings consistent with this opinion.

Factual and procedural background

Dino Cinel, at the time a Roman Catholic priest, was charged by bill of information alleging that on December 29, 1988, he "did violate La.R.S. 14:81.1 A(3), in that the said DINO CINEL possessed various photographs, films, video tapes, or the visual reproductions of sexual performances involving children under the age of seventeen (17) years old." After his first motion to quash, alleging breach of a police officer's promise not to prosecute, was overruled by the Court of Appeal, ² Cinel filed the instant motion to quash on February 7, 1994, urging the statute is unconstitutional [94-0942 La. 2] for violating the First Amendment's guarantee of free speech. The motion was argued on March 2; two days later, the District Court rendered oral judgment granting the motion to quash. The State has appealed the declaration of unconstitutionality. La. Const. art. 5, § 5(D).

The portion of the statute under which Cinel was charged provides as follows:

§ 81.1. Pornography involving juveniles

A. Pornography involving juveniles is any of the following:

* * * * * *

(3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.

* * * * * *

D. Lack of knowledge of the juvenile's age shall not be a defense.

The crime carries as penalty a minimum of two years, and a maximum of ten years, at hard labor without benefit of parole, probation or suspension of sentence, and a maximum fine of $10,000. R.S. 14:81.1 E.

First Amendment overbreadth doctrine

The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. Massachusetts v. Oakes, 491 U.S. 576, 581, 109 S.Ct. 2633, 2637, 105 L.Ed.2d 493 (1989). Overbreadth doctrine has wide-ranging effects, for a statute found to be substantially overbroad is subject to facial invalidation. It is strong medicine, to be applied sparingly and only as a last resort. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). The scope of the doctrine must be carefully tied to the circumstances in which the facial invalidation is truly warranted. Id. The overbreadth involved must be "substantial" before the statute involved will be invalidated on its face. Id., 413 U.S. at 615, 93 S.Ct. at 2918.

When a court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is [94-0942 La. 3] subject to such a limiting construction. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982), and citations therein at fn. 24. Further, if the statute is not subject to a narrowing construction and is impermissibly overbroad, it nevertheless should not be struck down on its face; if it is severable, only the unconstitutional portion is to be invalidated. United States v. Thirty-seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). A state court should also deal with a state statute in the same way. If the invalid reach of the law is cured, there is no longer reason for proscribing the statute's application to unprotected conduct. New York v. Ferber, at fn. 24. In other words, when a state court is dealing with a state statute challenge of overbreadth, it should construe the statute to avoid constitutional problems if the statute is subject to such a limiting construction, and this construction is binding on the federal court. Id.

First Amendment free speech jurisprudence

In general, the states may not pass laws restricting free speech. U.S. Const. amends. 1, 14. The Supreme Court of the United States, however, has recognized that certain forms of speech fall outside the First Amendment's protection:

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 * * *. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942).

Later, in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the court squarely held that obscenity was not constitutionally protected speech. Incipiently noting the special problem of obscenity and children, the court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), held that states have a "legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles " (emphasis added). Id., 413 U.S. at 18-19, 93 [94-0942 La. 4] S.Ct. at 2612. The Miller court expounded the now-familiar definition of obscenity. ³

Next, in New York v. Ferber, supra, the court recognized the growing body of evidence available to state legislatures, linking child pornography with physiological, emotional and mental health problems in children. 458 U.S. at 756-763, 102 S.Ct. at 3354-3358. The court therefore found that the states are entitled to "greater leeway" in the regulation of pornographic depictions of children than in general obscenity cases and held that child pornography may be "consider[ed] * * * without the protection of the First Amendment." 458 U.S. at 756, 764, 102 S.Ct. at 3354, 3358. Specifically, the court announced the test for statutes that restrict visual depictions of sexual conduct by children below a certain age:

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.

458 U.S. at 764, 102 S.Ct. at 3358.

The court further held, pertinently to the instant case, that as with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Id., citing Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). In other words, to pass constitutional muster, a child pornography statute must require scienter (the Latin word for "knowingly"), some degree of guilty knowledge, on the part of the defendant; however, the court did not specify the dimensions of the requisite scienter. See also United States v. Burian, 19 F.3d 188, 191 (5th Cir.1994); United States v. X-Citement Video Inc., 982 F.2d 1285, 1291 (9th Cir.1992).

Most recently, in Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), the defendant challenged, on various constitutional grounds, an Ohio statute that made it illegal for any person to "[p]ossess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity[.]" Ohio Rev.C.Ann. § 2907.323(A)(3) (Supp.1989). A plain reading of the statute showed that [94-0942 La. 5] scienter was not stated as an element of the offense. The Supreme Court, however, held that even though the statute did not specify the requisite mental state, this was "cured by another law that plainly satisfies the requirement laid down in Ferber that prohibitions on child pornography include some element of scienter." Id., 495 U.S. at 115, 110 S.Ct. at 1699. The court thus held that states may prohibit the simple possession of child pornography.

In general the imposition of criminal liability requires knowledge of the fact that separates lawful from unlawful conduct. Liparota v. United States, 471 U.S. 419, 425, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985). Whenever it is possible, courts have the duty to interpret statutes in a manner consistent with the Constitution. United States v. Burian, supra, citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397-1398, 99 L.Ed.2d 645 (1988), and United States v. 37 Photographs, 402 U.S. 363, 369-370, 91 S.Ct. 1400, 1404-1405, 28 L.Ed.2d 822 (1971). See also Osborne v. Ohio, supra.

The federal Courts of Appeals, facing challenges to a federal law that criminalizes the possession of material involving the sexual exploitation of minors, 18 U.S.C....