State v. Higginbotham

• Jurisdiction: New Jersey,United States
• Court: New Jersey Supreme Court
• Writing for the Court: WAINER APTER, JUSTICE.
• Docket Number: A-57-22
• Decision Date: 08 May 2024
• Parties: State of New Jersey, Plaintiff-Appellant, v. Andrew Higginbotham, Defendant-Respondent.
• topic: Civil Rights,Constitutional Law

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State of New Jersey, Plaintiff-Appellant, v. Andrew Higginbotham, Defendant-Respondent.

No. A-57-22

Supreme Court of New Jersey

May 8, 2024

Argued November 29, 2023

On certification to the Superior Court, Appellate Division whose opinion is reported at 475 N.J.Super. 205 (App. Div. 2023).

Michael L. Zuckerman, Deputy Solicitor General, argued the cause for appellant (Matthew J. Platkin, Attorney General attorney; Jeremy M. Feigenbaum, Solicitor General, Michael L Zuckerman, Mercedes N. Robertson and Liza B. Fleming, Deputy Attorneys General, of counsel and on the briefs).

Alison Gifford, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney Alison Gifford, of counsel and on the briefs, and Taylor L. Napolitano, Assistant Deputy Public Defender, on the briefs).

Alycia Beyrouty, Assistant Mercer County Prosecutor, argued the cause for amicus curiae County Prosecutor's Association of New Jersey (Jeffrey Sutherland, Cape May County Prosecutor, President, County Prosecutor's Association, attorney; Alycia Beyrouty, Laura Sunyak, Assistant Mercer County Prosecutor, Emily M. Pirro, Assistant Somerset County Prosecutor, K. Charles Deutsch, Assistant Bergen County Prosecutor, Kylie E. Finley, Assistant Cape May County Prosecutor, and Bryna Batten, Assistant Cape May County Prosecutor, of counsel and on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation and Rutgers Constitutional Rights Clinic Center for Law & Justice, attorneys; Alexander Shalom and Jeanne LoCicero, of counsel and on the brief, and Ronald K. Chen, on the brief).

CJ Griffin argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin and Claude Caroline Heffron, on the brief).

WAINER APTER, J., writing for a unanimous Court.

The Court considers whether subsection (c) of the definition of "portray a child in a sexually suggestive manner" in N.J.S.A. 2C:24-4(b)(1) is substantially overbroad in violation of the First Amendment to the United States Constitution.

Defendant Andrew Higginbotham was charged with sixteen counts of endangering the welfare of a child under subsection (c), which makes it a crime "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). The charges arose from photographs he had distributed of a five-year-old girl. Defendant superimposed sexually explicit, obscene text over the photos. He also distributed a photo of his clothed but aroused penis next to photos of the child, superimposed with sexually explicit, obscene text. In all photos, the child was clothed.

Defendant moved to dismiss the indictment, contending that subsection (c) was unconstitutionally vague and overbroad, either on its face or as applied to him. The trial court denied the motion. The Appellate Division reversed, holding that all three of the definitions of "portray a child in a sexually suggestive manner" set forth in N.J.S.A. 2C:24-4(b)(1) -- i.e., subsection (c), which defendant had challenged, but also subsections (a) and (b), which he had not -- were unconstitutionally overbroad because they criminalized images that constituted neither child pornography nor obscenity. 475 N.J.Super. 205, 233 (App. Div. 2023). The Court granted certification. 254 N.J. 515 (2023).

HELD: Subsection (c) of the definition of "portray a child in a sexually suggestive manner" in N.J.S.A. 2C:24-4(b)(1) is unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography. Because defendant was not charged under subsections (a) or (b) of the definition of "portray a child in a sexually suggestive manner," and did not challenge subsections (a) or (b) before the trial court or the Appellate Division, the Court does not reach the validity of those subsections.

1. Narrow categories of speech that are historically unprotected by the First Amendment include fighting words, obscenity, child pornography, incitement, defamation, true threats, and speech integral to criminal conduct. Child erotica is not on the list, but both obscenity and child pornography are relevant to this case. Under Miller v. California, something is obscene if (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest"; (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 413 U.S. 15, 24 (1973). Whereas states may constitutionally proscribe the distribution of obscene material, possession of obscene material by the individual in the privacy of his own home is constitutionally protected. (pp. 13-14)

2. In New York v. Ferber, the Court recognized a separate exception to the First Amendment for child pornography. 458 U.S. 747, 764 (1982). The Court has upheld statutes that define child pornography as the portrayal of "sexual conduct" or "sexual acts" by children, which includes the lewd or lascivious exhibition of, or graphic focus on, a child's genitals or pubic area. Id. at 751-53, 762. Child pornography need not meet the Miller obscenity standard to be proscribed; it is a separate type of speech that is categorically unprotected by the First Amendment. And unlike obscenity, states may constitutionally proscribe the possession and viewing of child pornography in the privacy of one's home. But laws that ban images that "do not involve, let alone harm, any children in the production process," violate the First Amendment unless they conform to the Miller obscenity standard. Ashcroft v. Free Speech Coal., 535 U.S. 234, 240-41 (2002). (pp. 14-17)

3. A court may hold a law facially overbroad under the First Amendment "[i]f the challenger demonstrates that the statute 'prohibits a substantial amount of protected speech' relative to its 'plainly legitimate sweep.'" United States v. Hansen, 599 U.S. 762, 770 (2023). "[A] law's unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute's lawful sweep." Ibid. (pp. 17-18)

4. "[A]n item depicting the sexual exploitation or abuse of a child" was formerly defined as an image that "depicts a child engaging in a prohibited sexual act or in the simulation of such an act." N.J.S.A. 2C:24-4(b)(1) (2017). In 2017, the Legislature amended N.J.S.A. 2C:24-4 to expand the definition to include an image that "portrays a child in a sexually suggestive manner," which is defined in three ways in subsections (a) through (c). Subsections (a) and (b) use nearly identical language to criminalize any depiction of "a child's less than completely and opaquely covered intimate parts" or "any form of contact with a child's intimate parts," whereas subsection (c) uses different language to criminalize other depictions of children "for the purpose of sexual stimulation or gratification of any person." (pp. 19-21) 5. The first step in any overbreadth analysis is to construe the challenged statute to determine what it covers. Subsection (c) says nothing about obscenity. Although it incorporates Miller's third prong by requiring that "the depiction does not have serious literary, artistic, political, or scientific value," it says nothing about Miller's first or second prongs. Subsection (c) therefore criminalizes a substantial amount of speech that does not legally constitute obscenity. Subsection (c) also strays far beyond the definition of child pornography set forth in Ferber. Where the criminalization depends only on whether "any person who may view the depiction" can use it "for the purpose of sexual stimulation or gratification," and where the only limit is that the depiction lacks "serious literary, artistic, political, or scientific value," large swaths of protected material are conceivably ensnared. Indeed, depictions of something other than sexual contact and less than completely covered intimate parts appear to be the only thing that subsection (c) can actually reach that subsections (a) and (b) do not. On its face, subsection (c) criminalizes only materials that do not constitute child pornography. Because the application of subsection (c) to images that constitute neither obscenity nor child pornography is realistic, not fanciful, and is substantially disproportionate to subsection (c)'s lawful sweep, subsection (c) is substantially overbroad. (pp. 23-27)

6. The Court explains why it rejects the State's suggestion that limiting language from subsections (a) and (b) of the definition of "portray a child in a sexually suggestive manner" could be understood to apply to subsection (c) as well, noting that (a), (b), and (c) are disjunctive, that subsection (c) is not reasonably susceptible to the State's limiting construction, and that the Court cannot re-write a plainly written legislative enactment. The Court also rejects the State's claim that "everything that subsection (c) covers . . . fits within" the Supreme Court's most recent definition of child pornography in United States v. Williams, 553 U.S. 285 (2008). In Williams, the Supreme Court proscribed "obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct." Id. at 293. But subsection...