US SUPREME COURT DECISIONS

In 1984, respondent Oakes took color photographs of his partially nude and physically mature 14-year-old stepdaughter, L.S. He was indicted, tried, and convicted of violating a Massachusetts statute (§ 29A) prohibiting adults from posing or exhibiting minors "in a state of nudity" for purposes of visual representation or reproduction in any publication, motion picture, photograph, or picture. The Massachusetts Supreme Judicial Court reversed the conviction. After holding that Oakes' posing of L.S. was speech for First Amendment purposes, the court struck down the statute as substantially overbroad under the First Amendment without addressing whether § 29A could be constitutionally applied to Oakes. It concluded that § 29A criminalized conduct that virtually every person would regard as lawful, such as the taking of family photographs of nude infants. Subsequently, § 29A was amended to add a "lascivious intent" requirement to the "nudity" portion of the statute and to eliminate exemptions contained in the prior version.

Held: The judgment is vacated, and the case is remanded.

401 Mass. 602, 518 N.E.2d 836, vacated and remanded.

JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHlTE, and JUSTICE KENNEDY, concluded that:

1. As a practical matter, the intervening amendment of the statute moots the overbreadth question in this case. Thus, overbreadth analysis is inappropriate under Bigelow v. Virginia, 421 U. S. 809. The overbreadth doctrine -- an exception to the general rule that a person to whom a statute may be constitutionally applied can no longer challenge the statute on the ground that it may be unconstitutionally applied to others -- is designed to prevent the chilling of protected expression, which the former version of § 29A cannot do, since it has been repealed. That overbreadth was discussed and rejected as a mode of analysis in Bigelow -- where there was no need to comment on that issue, since the defendant's conviction was reversed on the narrower and alternative ground that the statute was unconstitutional as applied -- is evidence that the application of Bigelow does not depend on whether other questions presented will be answered adversely to the defendant. It is not constitutionally offensive to decline to reach Oakes' challenge, since an overbroad statute is not void ab initio, but merely voidable. Since the special chanrobles.com-red

Page 491 U. S. 577

concern that animates the overbreadth doctrine is no longer present, the doctrine's benefits need not be extended to a defendant whose conduct is not protected. Moreover, the amendment of a state statute pending appeal to eliminate overbreadth is not different, in terms of applying the new law to past conduct, from a state appellate court adopting a limiting construction of a statute to cure overbreadth. This Court has long held in the latter situation that the statute, as construed, may be applied to conduct occurring before the limiting construction. Pp. 491 U. S. 581-594.

2. Since the sole issue before this Court has become moot, and a live dispute remains as to whether the former version of § 29A can constitutionally be applied to Oakes, this case is remanded for a determination of that remaining live issue. Pp. 491 U. S. 584-585.

JUSTICE SCALIA, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded that the subsequent amendment of § 29A to eliminate the basis for the overbreadth challenge does not eliminate the overbreadth defense. The overbreadth doctrine serves to protect constitutionally legitimate speech not only after an offending statute is enacted, but also when a legislature is contemplating what sort of statute to enact. If no conviction of constitutionally proscribable conduct would be lost, so long as the offending statute was narrowed before the final appeal, legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place. Moreover, while this Court has the power to adopt a rule of law which says that the defendant's acts were lawful because the statute that sought to prohibit them was overbroad and therefore invalid, it does not have the power to pursue the policy underlying that rule by conditioning the defendant's criminal liability on whether, by the time his last appeal is exhausted, letting him challenge the statute might serve to eliminate any First Amendment "chill." Pp. 491 U. S. 585-588.

JUSTICE SCALIA, joined by JUSTICE BLACKMUN, also concluded that the case should be remanded for the court below to dispose of the as-applied challenge, since the statute is not impermissibly overbroad. The scope of this statute has already been validated except as to nonpornographic depictions, New York v. Ferber, 458 U. S. 747, and has been narrowed further by statutory exemptions, and any possibly unconstitutional application of it -- for example, to artistic depictions not otherwise exempt or to family photographs -- is insubstantial judged in relation to the statute's plainly legitimate sweep. Pp. 491 U. S. 588-590.

O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J.,and WHITE and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BLACKMUN, J., joined, and in which BRENNAN, chanrobles.com-red

Page 491 U. S. 578

MARSHALL, and STEVENS, JJ., joined as to Part I, post, p. 491 U. S. 585. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 491 U. S. 590.