State v. Jordan, s. 18235

• Decision Date: 26 May 1983
• Docket Number: Nos. 18235,18236,s. 18235
• Citation: 665 P.2d 1280
• Parties: STATE of Utah, Plaintiff and Respondent, v. Robert JORDAN, Jr., Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. Robert JORDAN, Jr. and Terry L. Fullmer, Defendants and Appellant.
• Court: Utah Supreme Court

Page 1280

665 P.2d 1280

STATE of Utah, Plaintiff and Respondent, v. Robert JORDAN, Jr., Defendant and Appellant.

STATE of Utah, Plaintiff and Respondent, v. Robert JORDAN, Jr. and Terry L. Fullmer, Defendants and Appellant.

Nos. 18235, 18236.

Supreme Court of Utah.

May 26, 1983.

Michael D. Esplin, Provo, W. Andrew McCullough, Orem, for defendants and appellants.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

The defendants appeal their convictions for sexual exploitation of a minor.

Based upon information received from a confidential police informant, a search warrant was issued in November of 1981 for the search of defendants' residence for the presence of child pornography and other evidence of sexual exploitation of a minor. A subsequent daylight search of their home resulted in the seizure of a number of nude photographs depicting one or both of the defendants and a minor in simulated sexual conduct. Unexposed film, flash cubes, a cloth sack and a General Electric color television set were also confiscated during the search. Defendants were charged with sexual exploitation of a minor "in that they knowingly and intentionally used, persuaded induced or enticed ________, a minor, to pose in the nude while simulating sexual conduct for the purpose of photographing, filming, recording, or displaying sexual or simulated sexual conduct" in violation of U.C.A., 1953 (1981 Supp.), § 76-10-1206.5.

Defendants advance three grounds for appeal: (1) the unconstitutionality of the statute; (2) the defectiveness of the search warrant; and (3) failure to grant them a hearing to determine whether the material seized was pornographic.

I.

Defendants challenge the constitutionality of the statute on three separate determinants, viz., it is overbroad, invades their right to privacy, and is void for vagueness. We examine these elements in that order.

Section 76-10-1206.5 provides:

Sexual exploitation of minors. (1) A person is guilty of sexual exploitation of a minor who knowingly employs, uses, persuades, induces, entices or coerces any minor to pose in the nude for the purpose of sexual arousal of any person or for profit or to engage in any sexual or simulated sexual conduct for the purpose of photographing, filming, recording or displaying in any way the sexual or simulated sexual conduct.

1. Defendants contend that the statute is overly broad in contravention of free speech guaranteed by the First and Fourteenth Amendments of the United States Constitution. They also contest its validity on the basis that it sweeps within its ambit behavior not actionable under the test of legal obscenity laid down in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Both of these points were extensively discussed in the recent decision of New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) which is dispositive here on several points. It is a rule of long standing both in our jurisdiction and under constitutional principles that in order to be secure within the pale of the First Amendment, behavior must be expressive or it remains unprotected. Miller v. California, supra; Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); West Gallery v. Salt Lake City Bd. of Com'rs., Utah, 586 P.2d 429 (1978); Sutton v. Marvidikis, 6 Utah 2d 238, 310 P.2d 735 (1957); and Slater v. Salt Lake City, et al., 115 Utah 476, 206 P.2d 153 (1949). Where conduct is not communicational in nature, but falls instead, as here, into a category of conduct circumscribed by laws enacted for the public welfare, a different yardstick altogether applies. If it can be shown that the statute under attack has a rational relationship to safeguarding minors from harm, it will stand. Ginsberg v. New York, supra. Once that relationship has been established the specific provisions of the statute will not be found offensive to constitutional guarantees of the First and Fourteenth Amendments. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). That principle was eloquently restated in New York v. Ferber, supra:

The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking a statute down on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is "strong medicine" and have employed it with hesitation, and then "only as a last resort." Broadrick [v. Oklahoma ] 413 U.S. at 613 [93 S.Ct. 2908, 2916, 37 L.Ed.2d 830]. We have, in consequence, insisted that the overbreadth involved be "substantial" before the statute involved will be invalidated on its face. Id. 458 U.S. at ----, 102 S.Ct. 3361, 73 L.Ed.2d at 1130.

Here the prohibited conduct is not pure speech. It involves the production of visual recordings using minors under a penal statute dealing generally with pornographic and harmful materials and performances, and specifically with sexual exploitation of minors. The defendants' contention that nudity per se, and thus diaper commercials on the public airwaves, could be swept within the ambit of the statute, is not well taken. The language used "to pose in the nude" is clearly modified by three qualifying purposes: (1) sexual arousal, or (2) profit, or (3) engaging in sexual or simulated sexual conduct. Defendants were charged under the latter category. The great majority of the exhibits before us leaves no doubt in our minds that the trial court properly found the depiction to be simulated sexual conduct.

Defendants nonetheless claim that they have standing to attack the constitutionality of the term "for profit" appearing in the statute and contend that that broad language renders the statute invalid on its face, even though their conduct could have been constitutionally proscribed by a narrowly drawn statute. We disagree. Without discussing the issue of whether defendants may rightfully bring such a claim before this Court subsequent to a conviction, or whether they should have brought that claim in the nature of an action for injunctive or declaratory relief, we briefly touch upon the demerit of their argument. The rule still stands that where defendants were not charged with an activity, the adjudication of that activity, though encompassed under the sanctions of the statute, must await a real controversy. New York v. Ferber, supra, 458 U.S. at ----, 102 S.Ct. at 3360, 73 L.Ed.2d at 1129, and cases cited therein. State v. Vlacil, Utah, 645 P.2d 677 (1982) (Oaks, J., concurring). The exception to that rule comes into play where overbroad language has a "chilling effect" upon privileged action and constitutes a disincentive so strong that it results in an in terrorem effect within the protection of First Amendment rights. And the standard is high:

The exception is justified by the overriding importance of maintaining a free and open market for the interchange of ideas. Nevertheless, if the statute's deterrent effect on legitimate expression is not "both real and substantial," and if the statute is "readily subject to a narrowing construction by the state courts," see Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 45 L.Ed.2d 125, 95 S.Ct. 2268, [2276] the litigant is not permitted to assert the rights of third parties.

Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); see also Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In addition, courts have allowed the exception where a constitutional issue could be tested by way of injunctive or declaratory relief where the privileged conduct had been proscribed as to others and the complaining party was contemplating similar conduct. See Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); see generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).

Here the alleged overbroad language in the statute can be narrowly construed, given the context in which it appears, and we do not think that this case lends itself to an adjudication of hypothetical claims not before us. In short, the sexual exploitation of minors is not protected expression of speech, precluding us from invoking the exception to avoid any "chilling effect" of the language. The defendants were not charged with using the minor to pose in the nude for profit, and they cannot rely upon the exception to test that proscribed conduct as it affects others. Moreover, were that offensive part removed from the statute, the defendants would still find themselves charged as before. The guideline as to standing under those circumstances has been nicely put in a metaphor: "When a line of excision is available, one standing within the zone which a truncated statute might reach may be barred from setting up the statute's overbreadth as to others." Note, supra, at 909.

The contention advanced by defendants that the conduct and resulting depiction must meet the Miller standard of obscenity was expressly addressed in New York v. Ferber, supra. In refusing to apply that standard in child pornography cases, the Ferber court fashioned a discrete test from that enunciated in Miller. It reiterated the need for some element of scienter on the part of the defendant. Id. 458 U.S. at ----, 102 S.Ct. at 3358, 73 L.Ed.2d at 1127. The Utah statute passes that test: "A person ... who knowingly employs ..." The stated offense "must be limited to works that visually depict sexual conduct by children below a specified age." New York v. Ferber, supra, 458 U.S. at ----, 102 S.Ct. at 3358, 73 L.Ed.2d at 1127. [Emphasis in...