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Washington Supreme Court Strikes Down Pornography Prohibition as Unconstitutionally Vague

by Christopher Zoukis

The Supreme Court of Washington held a community custody condition preventing a probationer from possessing or accessing pornography unconstitutionally vague under the First Amendment because the prohibition also extended to works of art, books, advertisements, movies, and television shows. The May 10, 2018, opinion ruled that though the pornography prohibition was supported by a definition, the definition was vague as well.

“Jim Wilcox” exchanged sexually explicit Facebook messages with 9-year-old K.M. K.M.’s father contacted the police, and an investigation linked the Facebook account to Jameel Padilla. Padilla was charged with communication with a minor for immoral purposes. He was convicted and sentenced to 75 days of confinement and 12 months of community custody.

Padilla’s community custody sentence included several conditions. One condition prohibited him from “possess[ing] or access[ing] pornographic materials, as directed by his supervising Community Corrections Officer” (“CCO”). The condition defined pornographic materials as “images of sexual intercourse, simulated or real, masturbation, or the display of intimate body parts.”

Padilla challenged the condition on appeal, arguing that it was unconstitutionally vague. The intermediate court of appeals upheld the condition. Padilla sought review by the Washington Supreme Court. The Court granted review and reversed.

Washington trial courts have significant leeway in imposing community custody conditions, but a trial court abuses its discretion if it imposes an unconstitutional condition. The Court said that a condition is unconstitutionally vague if “(1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.” Furthermore, the Court noted that a restriction implicating First Amendment rights “demands a greater degree of specificity and must be reasonably necessary to accomplish the essential needs of the state and public order.”

The State argued that because the condition provided a definition of “pornographic materials,” it could not be vague. The Court disagreed, ruling that “[t]he presence of a vague definition does not save the condition from a vagueness challenge if it also encompasses a broad range of speech protected by the First Amendment.”

The Court noted that the definition was constitutionally overbroad. A prohibition against viewing simulated sex could encompass television shows and films, such as Titanic and Game of Thrones, which are not ordinarily thought of as pornography. And prohibitions against depictions of intimate body parts could extend to a variety of works of art, books, advertisements, movies, and television shows. As such, the plain language of the definition was ambiguous and overbroad.

The Court also found that the definition could lead to arbitrary enforcement. It cited a previous case in which a parole officer stated that he would have “locked [the parolee] up” for possessing a photograph of Michelangelo’s statue of David pursuant to a condition prohibiting pornography.

“[D]elegating the authority to determine the prohibition boundaries to an individual CCO creates ‘a real danger that the prohibition on pornography may ultimately translate to a prohibition on whatever the officer personally finds titillating,’” wrote the Court, quoting State v. Bahl, 167 Wn.2d 739 (2008).

The Court concluded that Padilla’s sentencing condition “fails to adequately put him on notice of which materials are prohibited and leaves him vulnerable to arbitrary enforcement. Therefore, the condition is unconstitutionally vague.”

Accordingly, the Supreme Court reversed the court of appeals’ decision and remanded the case back to the trial court for a determination of whether such a restriction was narrowly tailored based on Padilla’s conviction, and if so, for further definition of the term “pornographic materials.” See: State v. Padilla, 416 P.3d 712 (Wash. 2018). 

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Related legal case

State v. Padilla



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