Posted by Eugene Volokh:
Except It Looks Like It Isn't a Crime:
The [1]Clovis (New Mexico) News Journal reports:
Stickers on a Clovis man's car portray cartoon images of
bare-breasted female devils in sexually compromising positions.
[See [2]here for an image of what seems likely to be the
sticker.-EV] And the images have caught the attention of Clovis
police.
Officials have charged 31-year-old Dean Young, the owner of a
yellow Ford Focus displaying the images, with distribution of
sexually oriented materials to minors. The charge is a misdemeanor
carrying a maximum punishment of 364 days in jail and $1,000 fine.
Young is scheduled to appear in magistrate court on the charges in
the next few weeks. . . .
[State prosecutor Chris] Chandler said the case came to light after
the young son of Clovis police Detective Kirk Roberts saw the
stickers. Roberts saw his son staring at the images during a family
outing to an area restaurant, where Young works as a waiter,
Chandler said.
Young said he would have removed the stickers if Roberts hadn't
threatened to charge him with a felony. He said Roberts told him to
remove the stickers, and came back to the restaurant two weeks
later. When they weren't removed, police issued the citation to
Young, who said Roberts is the first person to approach him with
concerns over the stickers. . . .
([3]Matt Welch (at Reason's Hit & Run) also reports on this.)
Now it turns out that lower courts have mostly upheld against First
Amendment challenge fairly narrowly crafted restrictions on the public
display, in places where minors may be present, of sexually themed
material that's constitutionally protected for adults but that is
deemed unsuitable for minors. (See [4]here for citations to some
cases.) It's hard to tell which material would be restrictable this
way, since the standard is so vague, and since there have been few
prosecutions under such statutes and thus little clarification; so
it's not clear whether the sticker qualifies. For whatever it's worth,
here's the New Mexico standard, which is similar to the one lower
courts have generally upheld:
"[H]armful to minors" means that quality of any description of
representation, in whatever form, of nudity, sexual conduct, sexual
excitement or sado-masochistic abuse, when it: (1) predominantly
appeals to the prurient, shameful or morbid interest of minors; and
(2) is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable material for
minors; and (3) is utterly without redeeming social importance for
minors.
("Harmful to minors" is the legal label for this; there doesn't have
to be proof that it's actually likely to cause psychological harm.)
But this post isn't about the First Amendment issue, which isn't
involved here. Under current First Amendment rules, states can bar
such material, and while I think there are problems with this --
chiefly related to the vagueness of the law -- I don't get too worked
up about it.
However, as best I can tell, New Mexico hasn't outlawed what this guy
did. The [5]relevant part of the New Mexico statutes (30-37-2)
expressly bars (1) "sell[ing], deliver[ing], distribut[ing],
display[ing] for sale or provid[ing] to a minor" such material, (2)
exhibiting movies or shows containing such material to a minor, (3)
disseminating such material to a minor using a computer, or (4)
displaying in an outdoors movie theater a movie containing unclothed
sexual conduct, if a minor can see it without taking extraordinary
measures or having a ticket (in the latter case, presumably the minor
would be accompanied by a parent). The statute does not outlaw
noncommercial display of such material, which is what Dean Young seems
to have done.
The prosecutor's theory is that Young was distributing the material to
a minor by displaying it. But that's not the way the term
"distributing" is usually meant; would we say that a billboard, a
T-shirt, or a sign is being "distributed" to viewers? And on top of
that, the statute says "sell[ing], deliver[ing], distribut[ing],
display[ing] for sale or provid[ing] to a minor" -- the inclusion of
"display for sale" as a separate item suggests that display not for
sale is not covered.
So maybe there oughtta be a law -- but it looks like there isn't one.
If anyone who knows New Mexico law can point out errors in my
analysis, please let me know. But that's my tentative thinking on
this.
References
1.
http://cnjonline.com/engine.pl?station=clovis&template=storyfull.html&id=9759
2. http://www.mattwelch.com/photos/twogirls.jpg
3. http://www.reason.com/hitandrun/2005/02/no_sympathy_for.shtml#008410
4. http://www1.law.ucla.edu/~volokh/shield.htm#154
5.
http://216.239.63.104/search?q=cache:6_HR4bs623EJ:webjunction.org:980/nm/documents/9062.pdf+%22It+is+unlawful+for+a+person+to+knowingly+sell,+deliver,+distribute,+display+for+sale+or+provide+to+a+minor%22&hl=en
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