by Douglas Ankney

The Court of Appeal of California, First Appellate District, held that a probation condition prohibiting possession of pornographic materials was impermissibly vague.

Michael Gruis pleaded no contest to one count of possession of child pornography in violation of California Penal Code § 311.11(a). The trial court suspended imposition of sentence and placed Gruis on probation for two years, with one year in the county jail. Gruis appealed a condition of his probation that prohibited him from possessing pornographic materials, arguing the term “pornographic” was unconstitutionally vague because it lacked reference to any statutory definition of pornographic.

The Court observed in “granting probation, the trial court has broad discretion to impose conditions that foster rehabilitation and protect public safety, but that discretion is not boundless, (People v. Carbajal, 899 P.2d 67 (Cal. 1995)), and a probation condition may be challenged as unconstitutionally vague and overbroad.” In re Sheena K., 153 P.3d 282 (Cal. 2007).

The Court then addressed Gruis’ challenge of the probation condition based upon the vagueness doctrine, which is a due process concept of fair warning to guard against arbitrary government action and to provide defendants with adequate notice. In re D.H., 4 Cal. App. 5th 722 (2016). For a probation condition to withstand a vagueness challenge, it must be sufficiently detailed so that the probationer knows precisely what is required of him and so that the court is able to determine whether it has been violated. Sheena K.

The Court stated: “The vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Sheena K. “A vague law not only fails to provide adequate notice to those who must observe its strictures, but also impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Id. “In deciding the adequacy of any notice afforded by those bound by a legal restriction, we are guided by the principles that abstract legal commands must be applied in a specific context, and that, although not admitting of mathematical certainty, the language used must have reasonable specificity.” Id. However, a “claim of vagueness will be rejected if the language of the condition is susceptible of any reasonable and practical construction or if its terms may be made reasonably certain by reference to other definable sources.” People v. Lopez, 66 Cal. App. 4th 615 (1998).

After discussing seven opinions from both state and federal courts, the Court explained that there “appears a general consensus among courts, including those upholding no-pornography conditions of probation or supervised release against constitutional challenges, that the terms ‘pornographic’ and ‘pornography,’ standing by themselves, are subjective and vague.” (See full opinion for the citations.) The Court observed that the “term ‘pornography’ could conceivably encompass many well-known works of artistic and cultural significance featuring nudity or sexually explicit material.” United States v. Loy, 237 F.3d 251 (3d Cir. 2001). “Applied literally, the language of the condition would prevent [defendant] from viewing Oscar-winning films like American Beauty and Brokeback Mountain, television shows like The Wire, or sexually explicit works of art that appear in museums.” United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015).

In United States v. Simmons, 343 F.3d 72 (2d Cir. 2003), the defendant was convicted of possession of child pornography under federal statute. The Simmons Court upheld a condition prohibiting possession of pornographic materials because the statute of conviction, 18 U.S.C. § 2256, defined pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct.” The statute further defined what constitutes “sexually explicit conduct.” Id.

In contrast, in the current case, the sentencing court failed to define the term “pornographic materials” with reference to § 311.11(a) or any other statutory reference. Even if it had done so, § 311.11(a)’s definition of “pornography” could “still be read to encompass works that depict even a single act of simulated adult sex, ‘however fleeting or veiled, and regardless of how insignificant it may be to the overall content of an art exhibit, play, or movie,’” according to the Court. Gnirke. Nor had the sentencing court supplied a detailed definition of “pornographic materials.” Therefore, the Court ruled that the process for determining what “pornographic materials” Gruis was prohibited from possessing was impermissibly “subjective” and “heavily influenced by the individual, social, and cultural experience of the person making the determination.” Simmons.

Accordingly, the Court remanded to the trial court to either strike or modify the no-pornography probation condition in a manner consistent with the Court’s opinion. See: People v. Gruis, 94 Cal. App. 5th 19 (2023).  

Editor’s note: Because the Court decided this case based on the vagueness doctrine, it did not reach the merits of Gruis’ overbreadth challenge. However, it did provide an informative general discussion on overbreadth challenges to probation conditions prohibiting the possession of sexually explicit materials involving adults intended to serve “as guidance.” Anyone with a particular interest in the issue is encouraged to read the Court’s discussion, which includes a roundup of court opinions from jurisdictions across the country. 

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