State v. Mauer, A05-460.

• Decision Date: 15 November 2007
• Docket Number: No. A05-460.,A05-460.
• Citation: 741 N.W.2d 107
• Parties: STATE of Minnesota, Respondent v. Helmut MAUER, Appellant.
• Court: Minnesota Supreme Court

741 N.W.2d 107

STATE of Minnesota, Respondent v. Helmut MAUER, Appellant.

No. A05-460.

Supreme Court of Minnesota.

November 15, 2007.

Lori Swanson, Minnesota Attorney General, Saint Paul, MN, and Michael O. Freeman, Jean E. Burdorf, Hennepin County Attorneys, Minneapolis, MN, for Respondent.

William Gatton, Minneapolis, MN and Michael McGlennen, Hopkins, MN, for Appellant.

Heard, considered, and decided by the court en banc.

OPINION

HANSON, Justice.

We are asked to decide whether the provision within Minn.Stat. § 617.247, subd. 4(a) (2006) (the "child pornography statute"), making it a crime to possess child pornography if the possessor has "reason to know" that the work involves a minor, requires proof of a constitutionally adequate element of scienter. Following a bench trial, the district court found appellant Helmut Horst Mauer guilty on three counts of possession of a pornographic work involving a minor because Mauer had reason to know that performers in the videos he possessed would be children. Mauer appealed but also sought postconviction relief, arguing that the statute violates the First Amendment for lack of an adequate scienter element. The district court denied Mauer's postconviction petition because it concluded that "reason to know" contained a constitutionally adequate level of scienter. The court of appeals affirmed, interpreting "reason to know" to require that a child pornography possessor be "in some manner aware" of facts which lead him to believe that a performer in the pornographic work is a child. State v. Mauer, 726 N.W.2d 810, 814 (Minn.App.2007). Because we conclude that the child pornography statute is not unconstitutional, but we interpret "reason to know" in a manner that is slightly different than the court of appeals, we affirm in part, reverse in part, and remand to the district court for reconsideration consistent with this opinion.

The facts of this case are undisputed. In May 2003 Mauer received a solicitation to purchase videos from a business known as "C.R.T." The business had actually been seized by United States postal inspectors, who prepared the solicitation as part of an undercover operation. The postal inspectors obtained Mauer's name and address from C.R.T.'s customer records, which indicated that he had ordered several films of child erotica in 1998 in response to a similar solicitation.¹ The May 2003 solicitation graphically described sexual acts depicted in the videos and the ages of individuals involved in them, including references to a "12 year old," "preteens," "young girls 11-13 years old," and "[performers] from 9 to 14 years old." Mauer ordered videos fitting those descriptions, and requested more information about the solicitation's "Write Your Own Script" option through which C.R.T. customers could send in details of a sexual fantasy to be acted out by a 13-year-old girl.

A postal inspector, posing as a Federal Express employee, delivered the videos to Mauer at his business in Minneapolis. Shortly after Mauer took that delivery, law enforcement officers entered his business and discovered that Mauer had opened the packages but had not viewed the contents of any of the videos. Based on these facts, the State charged Mauer with four counts of possession of pornographic works involving minors. At trial, Mauer testified that he did not believe the videos would actually involve minors,² but the parties stipulated that some of the videos seized from Mauer included performers that were minors.

The district court found Mauer guilty on three counts because he had reason to know that some performers in the videos were minors. Mauer appealed and also pursued postconviction relief on the grounds that the child pornography statute violates the First Amendment for lack of a sufficient scienter element. The district court denied Mauer's petition for postconviction relief.

The court of appeals affirmed the conviction and the denial of postconviction relief. The court interpreted "reason to know" to "require a possessor [of sexually explicit material involving a minor] to be `in some manner aware' that the performer is a child." Mauer, 726 N.W.2d at 814. The court then concluded that its narrowing construction satisfied the First Amendment because it imposed a "scienter requirement that is more demanding than a civil — or a criminal — negligence standard." Id. at 813-14. The court recognized that the district court did not explicitly use that narrowing construction, but held that the district court's findings nevertheless satisfied this standard. Id. at 815-16.

I.

We first consider whether Minnesota's child pornography statute contains a sufficient scienter element to satisfy the First Amendment. Although non-obscene pornography involving adult performers is protected speech under the First Amendment, child pornography is not protected. See United States v. X-Citement Video, Inc., 513 U.S. 64, 72-73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); New York v. Ferber, 458 U.S. 747, 764-65, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Because of the state's compelling interest in protecting the "physical and psychological well-being" of children, a state may constitutionally prohibit possession of child pornography. Osborne v. Ohio, 495 U.S. 103, 109, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). In order to prohibit the possession of child pornography and yet avoid the risk of chilling protected speech in adult pornography, child pornography laws must include an element of scienter with respect to the age of minority of the performers. See X-Citement Video, 513 U.S. at 73, 115 S.Ct. 464 ("[T]he age of the performers is the crucial element separating legal innocence from wrongful conduct."); see also Ferber, 458 U.S. at 756, 102 S.Ct. 3348 ("Like 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."); Mishkin v. New York, 383 U.S. 502, 511, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966) ("The Constitution requires proof of scienter [in obscenity laws] to avoid the hazard of self-censorship of constitutionally protected material.").

Scienter is the "degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission." Black's Law Dictionary 1373 (8th ed. 2004). In order to satisfy the First Amendment, the demonstration of a child pornography possessor's scienter requires proof of some subjective awareness, not just proof that the possessor was objectively negligent in failing to know that a performer in the work was a minor. "Negligence is not a state of mind; it is a standard of conduct a defendant is expected to maintain regardless of his state of mind." Christina Egan, Level of Scienter Required for Child Pornography Distributors: The Supreme Court's Interpretation of "Knowingly" in 18 U.S.C. § 2252, 86 J. Crim. L. & Criminology 1341, 1379 (1996). Because the negligent possessor need not be aware of facts related to the performer's age, the risk of chilling protected speech would increase as possessors of constitutionally permissible material were compelled to discover the ages of those performing. Cf. id. at 1379 (noting the same potential chilling effect of imposing a negligence standard on distributors).

With this context in mind, we turn to Minnesota's child pornography statute, Minn.Stat. § 617.247, subd. 4(a), which reads:

A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony.³

(Emphasis and footnote added.) Mauer argues that the "reason to know" culpability standard in the child pornography statute permits conviction where a possessor is merely negligent with respect to the age of minority of a performer, and thus dispenses with the constitutional scienter requirement. Addressing this argument requires that we determine the meaning of the phrase "reason to know" as it is used in the child pornography statute.

Statutory interpretation is a question of law that we consider under a de novo standard of review. State v. Al-Naseer, 734 N.W.2d 679, 683 (Minn.2007). The primary objective for a court's interpretation of statutory language is to ascertain and give effect to the legislature's intent. Minn.Stat. § 645.16 (2006). "When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit." Id. An ambiguity exists only where a statute's language is subject to more than one reasonable interpretation. State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003).

The child pornography statute contains an express scienter element. It requires proof that a person possessing a pornographic work does so "knowing or with reason to know its content and character." Minn.Stat. § 617.247, subd. 4(a). The terms "content and character" refer to the nature of the "pornographic work," the definition of which requires that individuals depicted in the work are minors. Minn.Stat. § 617.246, subd. 1(f)(2)(i) (2006). This relationship between the definition of "pornographic work" and the scienter element eliminates any question of whether the child pornography statute is "completely bereft of a scienter requirement as to the age of the performers." See X-Citement Video, 513 U.S. at 78, 115 S.Ct. 464. And the express inclusion of a scienter element in the child pornography statute means that this is not a case where we may treat a statute's silence on the scienter element as an ambiguity, which would then allow us to imply a constitutionally sufficient scienter requirement. See, e.g., Al-Naseer, 734 N.W.2d at 683 (implying a mens rea element for criminal vehicular homicide for leaving...