OF COUNSEL. (APPEARANCES TENDERED.) CHIEF JUSTICE
RABNER: WELCOME, COUNSEL. MR. ZUCKERMAN BEING R PLEASE GO AHEAD.
MICHAEL L. ZUCKERMAN: THANK YOU. WITH THE COURT'S
PERMISSION, I WOULD LIKE TO RESERVE JUST A FEW MEPTS FOR REBUTTAL SDMRFRJT THAT'S
FINE. MICHAEL L. ZUCKERMAN: THANK YOU.
MAY IT PLEASE THE COURT, SUBSECTION C IS NEITHER UN CONSTITUTIONALLY OVERBROAD NOR
VAGUE. THE DEFENDANT FOCUSES ON OVERBREADTH SO I WILL DO THE SAME IN
MY OPENING. OVERBREADTH IS A DRAS STEK REMEDY TO BE GRANTED
ONLY WHEN A CLAIMANT SHOWS A SUBSTANTIAL NUMBER OF UNLAWFUL MRINGSZ. THE DEFENDANT
CANNOT DO SO. THE LEGISLATURE DID NOT CRAFT SUBSECTION C AS A STAND ALONE.
INSTEAD IT PUT IT OFF TWO OTHER SUBSECTIONS, A, WHICH COVERS IMAGES THAT FOCUS
PRURIENT INTEREST ON A REAL CHILD BY DEPICTING THEIR PARTLY OR COMPLETELY EXPOSED
INTIMATE PARTS AN B WHICH COVERS IMAGES THAT ACHIEVE THE SAME EFFECT BY
DEPICTING CONTACT WITH THOSE BODY PARTS. TWO WAYS THAT IS OF ACHIEVING THE SAME
LEWD EFFECT. SUBSECTION C FOLLOWS, COVERING IMAGES THAT
OTHERWISE DEPICT A CHILD FOR THE PURPOSE OF SOMEONE'S SEXUAL STIMULATION OR
GRATIFICATION UNLESS THE DEPICTION HAS SERIOUS ARTISTIC, LITERAL OR SCIENTIFIC
VALUE. THE DEFENDANT HAS PROPOSED A VERY CONSTRUCTION OF THAT
LANGUAGE SO LET ME RESTATE WHAT WE THINK THE BETTER READING IS.
NORMALLY, OF COURSE THAT READING WILL HELP DEFENDANTS, JUST NOT IN THE UNIQUE CONTEXT
OF OVERBREADTH. L. FAIRLY CONSTRUED, SUBSECTION C HAS THREE
OBJECTIVE ELEMENTS ON TOP OF THE STATUTE'S SUBJECTIVE MENS REA WHICH IS
KNOWLEDGE. THOSE THREE OBJECTIVE ELEMENTS ARE FIRST, THE
IMAGE HAS TO FOCUS PRURIENT INTEREST ON A CHILD ACHIEVING THE SAME LEWD EFFECT IN
REFERENCE TO INTIMATE BODY PARTS AS THE IMAGES TARGET TD BY A AN B AND THAT
FOLLOWS BY TECH BOOK INTERPRETED PRINCIPLES. FOR EXAMPLE THIS STATE MADE THE SAME
INTEREST IN STATE V. HOF MAN TO REQUIRE THE SAME KIND OF INVASIVENESS THAT THE
STATUTORY TUTS PRECEDING PRONGS REQUIRED, EVEN THOUGH THE RESIDUAL CLAUSE DIDN'T
SAY SO EXPRESSLY. THIS FIRST ELEMENT ALONE, DISPOSE ES OF MOST OF
DEFENDANT'S HYPOTHETICALS BECAUSE NO ONE WOULD SAY AN ORDINARY PIKT OF A CHILD
IN A WINTER CODE OR A SWIM SUIT ACHOOES THE TYPE OF LUD EFFECT LEWD EFFECT THAT
SUBSECTIONS A AN B ARE TARGETING. SECOND THE IMAGE HAS TO OBJECTIVE
LY REFLECT AS IT'S PURPOSE SOMEONE EASE SEXUAL STIMULATION OR FWRAT
INDICATION. THAT FOLLOWS FROM THE FACT THAT THE WORD PURPOSE LINKS TO THE ITEM,
NOT TO THE CREATOR OR VIEWER AN IT KOORDZ WITH HOW COURTS APPROACH NEAR IDENTICAL
IN, EVEN, IN COMMONWEALTH VERSUS DAVID SON AND THE RHODE ISLAND SUPREME COURT
JUST LAST YEAR IN STATE V. HANS SON, 2728 THIRD 1040. THAT DISPOSE ES OF NEARLY
ALL REMAINING HYPOTHETICALS, ESPECIALLY GIVEN THE WORDS SEXUAL STIMULATION
OR GRATIFICATION INDICATES SOMETHING MUCH MORE EXTREME THAN SIMPLY ELICITING SEXUAL
THOUGHTS. AN ORDINARY PICTURE PIKT OF A BEACH FWOER MAY OCCASION ROMANTIC
INTEREST IN A CLASS MAETD FOR EXAMPLE BUT THE IMAGE IS NOT MEANT TO FACILITATE
SEXUAL GRATIFICATION. SURE SOMEONE COULD HARBOR THAT PRIVATE INTENTION BUT THAT
PROOFS NOTHING. THE ANALYSIS IS ON THE IMAGE. THIRD, SUBSECTION C
EX INDUSTRIESLY EXCLUDES IMAGES WITH REDEEMING VALUE, THE NEW YORK LAW HELD IN
FERBER THAT IT LACKED SUCH A QUALIFIER, BUT THIS FINAL ELEMENT DISCLOSES
THAT THE LR'S IN TEPT WAS TO CAPTURE A NARROW BAND OF SIMILARLY EX MROITD IMAGES,
FOR EXAMPLE, WHEN AN ADULT EXPOSES THEIR INTIMATE PARTS WITH A CHILD OR
THERE IS ONLY FEIGNED CONTACT WITH A CHILD'S INTIMATE PARTS OR THERE IS A HIDDEN
CAMERA IN A BATHROOM OR LOCKER ROOM. IT DOES REAL HARM TO
CHILDREN WHEN THOSE KINDS OF IMAGES CIRCULATE ON LINE, THE FERBER LINE OF
CASES REPEATEDLY CONFIRMS THAT SUCH THING IS WHY SOCIETY CAN PROHIBIT SPEECH AND.
THREE FINAL POINTS. FIST, NEW JERSEY IS NOT AN
OUT LIAR, WE COUNT SIX STATES WITH LAWS CLOSELY COMPARABLE TO SUBSECTION
C, THE ONLY FIEM JUDICIAL OPINION WE'RE AWARE OF GOES OUR WAY.
SECOND, EVEN IF THERE WERE APPLICATIONS OF SUBSECTION C THAT FELL OUTSIDE OF FERBER,
THAT WOULD STILL BE SUBSCRIBE ABDOMINAL UNDER FIRST AMENDMENT SECTIONS.
THIS CASE IS A PERFECT EXAMPLE BECAUSE THE DEFENDANT CONCEDES
HIS IMAGES WERE PROSCRIBE ABDOMINAL OF OBSCENITY. LAST IF THE
PANEL HAD CONCERN, THERE WERE MUCH MORE MODERN REMEDIES AVAILABLE, IT STRUCK
SUBSECTIONS A AN B WHICH WERE NEVER IN THE CASE AT ALL. THAT UNDER SCORES THE PANEL
APPROACHED THINGS THE WRONG WAY JUMPING TO THE BROADEST READING AN BROADEST REMEDY
WHEN IT SHOULD HAVE DONE THE OPPOSITE. I WELCOME THIS COURT'S
QUESTIONS. THE COURT: YOU ARGUE SUBSECTION C IS NOT A STAND
ALONE AND INDEED INCORPORATES A AND B. LET'S LOOK AT THE LANGUAGE
OF THE STATUTE, A B AN C ARE SEPARATED BY THE WORD OR, WHICH COMMONLY MEANS
THEY ARE SEPARATE FROM ONE ANOTHER AN THEN C BEGINS WITH THE LANGUAGE, TO OTHERWISE
DEPICT A CHILD, WHICH COMMONLY MEANS THAT IT IS DIFFERENT, THE SECTION IS
DIFFERENT FROM THAT WHICH PRECEDED THAT. READING THE PLAIN LANGUAGE,
HOW CAN YOU CONCLUDE THAT A AND B ARE INCORPORATED IN THE SEPARATE DISTINCT
LANGUAGE OF C? THE. MICHAEL L. ZUCKERMAN: YOUR HONOR, I THINK
THAT THE STRUCTURE YOU'RE SEEING IS ACTUALLY QUITE SXHON SO HOF MAN FOR
EXAMPLE IS AN EXAMPLE OF THIS WHERE THERE IS A PROHIBITION ON COMMUNICATIONS MADE
DEMONSTRATESLY OR NOUNSLY, ANNOUNCELY. NOW, THEY SAID ANY OTHER
MANNER BUT THAT'S A SYNONYM FOR OTHERWISE. IT'S ANOTHER WAY OF ACHIEVING THE
SAME EFFECT THAT'S THE CON STRUBS THIS COURT APPLIED IN HOF MAN WHEN IT SAID LOOK
THOSE FIRST THREE THINGS ARE ABOUT IN VISHGSZ OF PRIVACY, WE ARE WITH EE ASSUMING
WHEN THE LEGISLATURE WROTE THIS RESIDUAL CLAUSE, WHAT IT MEANT WAS THINGS
THAT ARE ANNOYING OR ALARMING IN WAYS THAT INVADE YOUR PRIVACY IN THE SAME KIND
OF WAY. JUSTICE PIERRE-LOUIS: SUBSECTION C IS PRETTY
SPECIFIC HERE. IT DOESN'T JUST GIVE A GENERAL STATEMENT. IT'S PRETTY SPECIFIC
IN WHAT THE LEGISLATURE WAS TRYING TO IDENTIFY IN THAT PROVISION, AGAIN, THAT IS
PRECEDED BY THE WORD OR. MICHAEL L. ZUCKERMAN: SO, JUSTICE
PIERRE-LOUIS, I THINK IT IS SPECIFIC IN I THINK IT DOES MAKE CLEAR THAT
IT IS COVERING A NARROW BAND OF EXPLOIT ACTIVE THINGS THAT ARE ACHIEVING THE VERY
SAME KIND OF EXPLOIT I HAVE AN EXTREME EFFECT THAT A AN B ARE ALSO TARGETING,
SO IF YOU LOOKED AT A STATUTE, FOR EXAMPLE, THAT SAID, DON'T COMMIT THEFT BY BRAND
ISHING A WEAPON, THREATENING VIOLENCE OR OTHERWISE IN STILLING FEAR, A
DEFENDANT COULD IN STILL FEAR BY READING FREN MUCH EXISTENT SHL LIFRM BUT NO ONE
WOULD SAY THAT IS THE KIND OF THEME THAT C WOULD COVER. ESH KNOWS IN CONTEXT IT IS
IMPORTING THE TYPES OF THINGS THAT A AND B ARE INCORPORATING. SFLFRMENTS
THE EXAMPLE YOU FWAIF LIST A NUMBER OF WORDS ALL WITHIN EXCEPTION; IS THAT FAIR,
FOR EXAMPLE TAKE A LOOK AT A, BHIE MEANS OF POSINGING COMPOSITION, OR IN
TIMATE SEXUAL DOOEMS, DETAILS, WE'RE DEALING WITH A DIFFERENT STRUCTURE HERE. WE
HAVE THREE SEPARATE, SUBSEKZ SEPARATED BY THE WORD AS OR, HOW CAN YOU LINK
THEM AS ONE. MICHAEL L. ZUCKERMAN: IT'S A CATCHALL PROVISION
WHEN YOU SEE IT AT THE END OF A SERIAL LIST YOU READ IT TO TAKE MEANING FROM IT'S
FELLOW TRAVELLERS. THE COURT: THIS DOESN'T APPEAR TO BE A
SERIAL LIST THIS APPEARS TO BE THREE DIFFERENT WAYS TO PORTRAY A CHILD IN A SEXUAL
LY SUGGESTIVE MANNER WHICH DETAILED PRONGS FOR EACH ONE. MICHAEL
L. ZUCKERMAN: YOUR HONOR, I THINK WE AT LEAST READ THE THIRD ONE THAT IT IS DOING
THE WORK OF ACKNOWLEDGING THAT THERE IS NO WAY TO PARCEL OUT EVERY SINGLE
POSSIBLE WAY. A AN B CANNOT COVER THE UNIVERSE OF THE EVIL THAT THIS STATUTE IS
TARGETING, THAT'S GOING TO BE TRUE OF VIRTUALLY EVERY STATUTE. THE
DEFENDANT CAN SAY, WELL, UNDER A, I'M NOT DEPICTING THE COMPLETELY, YOU KNOW, IN
TIMATE PARTS ARE -- YOU KNOW, THIS NORMALLY IN CASES OBVIOUSLY HYPOTHETICALS, CAN BE,
YOU KNOW, INTERESTING OR FUN TO GET INTO. IN THIS CASE, THEY ARE NOT, BUT
I WILL SAY THAT WHEN WE LOOK AT CASES AN THESE ARE REAL CASES, RIGHT, WHERE THE
TESTIMONY OR SOMEONE ELSE, THEY JUST POSSESS AN IMAGE WHERE SOME M ADULT
IS EXPOSING THEIR INTIMATE PARTS TO A CHILD, WHERE THERE IS A VERY, VERY ZOOMED
IN FOCUS ON SUM ONE, THERE IS A HIDDEN CAMERA INSTALLED IN A BEDROOM OR BATHROOM
OR LOCKER ROOM, THOSE KINDS OF THINGS YOU CAN IMAGINE AND I THINK THIS IS
WHAT THE LEGISLATURE WAS GETTING AT, YOU COULD IMAGINE SOMEONE SAYING WELL THAT
DOESN'T QUITE FALL IN THE LANGUAGE OF A AND B AND WHAT C IS DOING IS SAYING
OKAY, IT MAY NOT FALL INTO THE LANGUAGE OF A AND B BUT IT'S PROSCRIBE ABDOMINAL
AS THE KIND OF EVIL WE'RE GOING AFTER AND IT'S STILL NOT THE KIND OF THINGS THAT
YOU HAVE A FIRST AMENDMENT RIGHT TO SEND AROUND THE INTERNET.
JUSTICE PATTERSON: IF C INCORPORATES FOR THE PROVISIONS OF A AND B IMPLICIT
LY, THEN HOW CAN YOU BE CORRECT IN ARGUING THAT THE APPELLATE DIVISION WENT TOO
FAR IN EVALUATE EVALUATING THE CONSTITUTIONALITY OF A AN B. YOU SAID A AND B WERE
NOT IN THE CASE, BUT YOUR ARGUMENT IN YOUR BRIEFING HERE IS THAT A AND B ARE
IMPLICITLY PART OF C AN LIMIT. CONSIDER. MICHAEL L. ZUCKERMAN: SO,
I DON'T THINK SO, JUSTICE PATTERSON, I MEAN IT'S TRUE WE DO THINK A AN B ARE
IMPORTANT SOURCES OF TEXTUAL EVIDENCE TO UNDERSTAND WHAT WORK C IS IS DOING;
THAT'S TRUE IN MANY CASES WHERE A PROVISION THAT IS NEARBY ANOTHER, ANOTHER SUBSECTION
OF A STATUTE WILL BE PROBATIVE TEXTUAL EVIDENCE TO UNDERSTAND THE STATUTE
THAT IS ACTUALLY BEING APPLIED IN THE CASE MEANS. HERE THE
DEFENDANT WAS ONLY CHARGED UNDER C HE WASN'T CHARGED UNDER A AND B.
JUSTICE PATTERSON: BUT YOUR ARGUE MANY HERE IS WE SHOULD BE LESS ALARMED BY
C IN TERMS OF THE OVERBREADTH AND VAGUENESS CHALLENGE BECAUSE A AND B ARE
IMPLICITLY WITHIN C OR, ESSENTIALLY PART OF C. MICHAEL L. ZUCKERMAN:
YOUR HONOR, I THINK I WOULD JUST TWEAK THE FORMULATION BECAUSE I WOULDN'T SAY
THAT C IS IN A OR B. I WOULD SAY THAT C IS THE THIRD IN A LIST THAT STARTS
WITH A AND B SO YOU READ A AND B TO UNDERSTAND BETTER WHAT C MEANS; THAT DOESN'T
MEAN A AN B WERE STATUTES THAT WERE UNDER REVIEW IN THIS CASE OR IT WOULDN'T
BE AN ADVISORY OPINION TO SAY THAT A AND BCHL ARE ALSO UNCONSTITUTIONAL WHEN DEFENDANT
WAS NEVER CHARGED WITH VIOLATING A AN B; THAT'S THE DISTINCTION WE'RE TRYING
TO DRAW. HE HAS NO STANDING, YOU CAN CALL IT STANDING, YOU CAN CALL IT ANYTHING.
JUSTICE PATTERSON: YOUR ANALOGY TO HOF MAN WAS THAT YOU LOOKED
AT SEG PTS OF THAT SINGLE SECTION TO DETERMINE WHETHER THAT CATCHALL LANGUAGE,
THAT RESIDUAL LANGUAGE WAS CONSTITUTIONAL SO I THOUGHT THAT WAS THE SAME
ARGUMENT YOU WERE MAKING HERE. AM I WRONG ABOUT THAT?
MICHAEL L. ZUCKERMAN: I THINK YOU'RE RIGHT ABOUT THAT. WE DO THINK THE LANGUAGE
OF A AND B IS VERY IMPORTANT EVIDENCE FOR UNDERSTANDING THE STATUTORY SWEEP OF
C AN UNDERSTANDING THAT C DOESN'T SWEEP AS BROADLY, FAIRLY CON VIEWED, PROPERLY
CONSTRUED, DOESN'T SWEEP AS BROADLY AS MY FRIENDS ON THE OTHER SIDE WOULD SAY.
YOU CAN IMAGINE ANY NUMBER OF SUBSECTIONS OF A STATUTE THAT
HELP YOU READ THE STATUTE UNDER REVIEW THAT AREN'T THEMSELVES -- THAT ISN'T THEN
SORT OF FREESTANDING, YOU KNOW, JURL JUDICIAL, YOU KNOW, AS TO THE
CONSTITUTIONALLY NALT OF THOSE STATUTES. YOU CAN EVEN IMAGINE A STATUTE OR LANGUAGE
THAT HAS BEEN INVALIDATED BY ANOTHER CASE BUT THAT IS STILL PROBATIVE TO
THE INQUIRY OF TRYING TO FIGURE OUT WHAT DID THE LEGISLATURE MEAN WHEN IT WROTE
C. IT WROTE C AS PART OF THIS PACKAGE SO YOU HAVE TO LOOK AT THE WHOLE PACKAGE
TO UNDERSTAND WHAT IT MEANT WHEN IT WROTE C. THAT DOESN'T MEAN THE DEFENDANT
HAS THE STANDING THAT WOULD ALLOW THE COURT TO SAY WE WANT TO INVALIDATE A AND
B TOO JUST BECAUSE IT WOULD BE EFFICIENT TO DO SO. JUSTICE
WAINER APTER: ASSUMING WE AGREED WITH YOU THAT WE HAVE TO LOOK AT A AND B HOW DOES
THAT STILL HELP US TO GET OVER THE PLAIN LANGUAGE OF C WHICH SAYS TO OTHERWISE
DEPICT A CHILD FOR THE PURPOSE OF SEXUAL STIMULATION. IT SEEMS LIKE YOU ARE E
OO READING IT TO SIMILARLY FIKT A CHILD BECAUSE YOU'RE SAYING THAT IT HAS
TO BE IN THE SAME WAY AN MEETING THE SAME CHIKT I CANS AS BOTH A AND B BUT THE
LEGISLATURE COULD HAVE WRIFRN IT TO SAY TO SIMILARLY AND INSTEAD DID NOT AND
WROTE IT TO SAY TO OTHERWISE, WHICH I SEE IN DICTIONARIES, MEANING, IN DIFFERENT
CIRCUMSTANCES, IN OTHER RESPECTS, IN A DIFFERENT WAY, IN ANOTHER MANNER TO
THE CONTRARY AND DIFFERENTLY. SO HOW IS THAT AT ALL THE SAME AS SIMILARLY,
WHICH SEEMS LIKE HOW YOU WANT IT TO BE READ? MICHAEL L.
ZUCKERMAN: THANK YOU, YOUR HONOR. I THINK THERE ARE JUST A
FEW WAYS IN WHICH WE READ IT A LITTLE DIFFERENTLY. IT'S BASICALLY THE SAME
IDEA. WE'RE NOT DISPUTING THAT OTHERWISE MEANS IN A DIFFERENT MANNER. THE IMPORTANT
DIN DISTINCTION IS BETWEEN MANNER AND EFFECT. WE THINK THAT
ALL THREE SUBSECTIONS ARE TARGETING A SIMILARLY EXTREME EFFECT OF EXPLOITING A
REAL CHILD THROUGH SOMETHING THAT INVOLVES FOCUS ON EITHER THEIR INTIMATE
PARTS OR SOMEONE ELSE'S EVEN TIM MAT PARTS OR SOMETHING THAT CLOSELY PROK MATS
INTIMATE PARTS. THAT'S IN EFFECT. NOW THE OTHERWISE IS SAYING
YOU ACHIEVE THAT EFFECT THROUGH OTHER WAYS OR MANNERS WHICH IS THE NORMAL THING
THAT LRS DO WHEN THEY WRITE RESIDUAL CLAUSES. JUSTICE MICHAEL NORIEGA:
IF THE LEGISLATURE WANTED US TO INCORPORATE THAT, THERE ARE MANY WAYS WE
COULD HAVE DONE THAT. HERE IT IS LEFT OUT ENTIRELY THERE IS NOTHING THAT
REFLECTS BACK TO A AND B THAT WOULD ALLOW US TO MAKE THAT JUMP.
MICHAEL L. ZUCKERMAN: JUSTICE NOR, I THINK THERE ARE TWO PIECES OF TEXTUAL BLANK
YOU HAVE TO GET TO THAT READING. EVEN IF YOU DON'T BRIEF IT IS THE ONLY READING
WE'RE TALKING ABOUT THE FACIAL VALIDITY OF THE STATUTE WHICH THE DEFENDANT CONCEDES
HE HAD NO RIGHT TO DISTRIBUTE THESE IMAGES. WHEN WE TALK ABOUT THE
FREESTANDING CONSTITUTIONAL VALIDITY OF SUBSECTION C I THINK THIS COURT IS PRECEDENT
IS I, FIRST, IT DOESN'T JUST SHOW UP AS A STOOND ALONE PROVISION, IT SHOWS UP AS
A C IN A LIST OF THREE SO IT IMPORTS MEANING FROM IT'S ASSOCIATES, FROM
THE FOREGOING SUBSECTIONS AN THE WORD OTHERWISE IS MEANINGFUL BECAUSE, AND THIS IS
TO JUSTICE WAINER APTER APARTMENT'S POINT, TOO, IT DOES CONNOTE THAT YOU'RE
USING A DIFFERENT MANNER, YOU'RE USING A DIFFERENT MANNER OF ACHIEVING THE SAME
EFFECT SO THAT'S WHY HOF MAN WORKS BECAUSE YOU ARE SAYING OTHERWISE ANY OTHER
MANNER, BUT I THINK JUSTICE WAINER APTER'S POINT IS IT'S OTHERWISE THE SAME THING,
YOU USE THE WORDS ANY OTHER MANNER TO SUGGEST, OKAY, WE'RE LOOKING AT A
DIFFERENT WAY OF GETTING TO THE SAME PLACE, THE SAME EFFECT WHICH IS THE HIGHLY
EXPLOIT I HAVE IMAGE THAT IS CON -- JUSTICE WAINER APTER:
THAT LANGUAGE, ALSO, IS ONLY A AND B SO IF WHAT THEY WANTED TO DO WAS TO SAY TO
OTHERWISE ACHIEVE THE SAME EFFECT IN A DIFFERENT WAY THEN WHY WOULDN'T THEY HAVE
USED I ANY OF THE LANGUAGE FROM A AND B ABOUT WHAT THE EFFECT IS BECAUSE IN A AND
B IT SAYS THE EFFECT IS, AS YOU JUST MENTIONED TO CONSTITUTE PRURIENT
INTEREST ON THE CHILD. THOSE WORDS ARE, AGAIN, JUST NOT FOUND ANYWHERE IN C SO
WHERE ARE WE TO UNDERSTAND FROM C THAT THEY EVEN ARE GETTING AT THE SAME
EFFECT AS A AND B. IT READS IN SUCH A WAY WHERE A AN B USE ALMOST THE EXACT SAME
WORDS, EXCEPT FOR MINOR DIFFERENCES TALKING ABOUT WHETHER THE BODY PARTS ARE
COVERED OR WHETHER THERE IS CONTACT. AND THEN, C, USES TOTALLY DIFFERENT
WORDS SUCH THAT WHEN YOU'RE READING KRCHL IT DOESN'T MAKE YOU THINK THAT
IT IS EXACTLY THE SAME AS A AND B BUT IN A SLIGHTLY DIFFERENT WAY.
MICHAEL L. ZUCKERMAN: YOUR HONOR, TWO THINGS. THE TEXT, WE
THINK EVEN IF YOU COULD READ IT THAT WAY TO SAY C IS GOING OFF ON A TANGENT AND
DOING ITS OWN THING I THINK ON AN OVERBREADTH INTERVAL DAGS POSTURE YOU
WOULD READ IT IN THE NARROWING WAY OR YOU WOULD APPLY THAT CONSTRUCTION TO IT.
THIS COURT CAN SAVE IT. IT HAS THAT AVAILABLE TO IT AN I THINK THIS
COURT'S CASES POINT IN THE DIRECTION AS THAT'S WHAT COURTS ARE SUPPOSED TO DO.
I, ALSO, I THINK THAT WHAT'S PARTICULARLY -- AGAIN, THIS PUTS
SOMETHING ON THE WORD OTHERWISE, BUT THAT IS WHAT THE LEGISLATURE, I THINK, WAS
TRYING TO SUGGEST. IF YOU GO TO THE LEGISLATIVE HISTORY THAT DOES SHOW
UP IN THE TESTIMONY. I MEAN TESTIMONY OF ONE WITNESS I KNOW IS NOT PROBATIVE OR
CAN'T CARRY THE DAY IN A STATUTORY INTERPRETATION. IT IS PROBATIVE, IT IS
NOT DISPOSITIVE. THE COURT: TAKE A STEP BACK. I WANT TO
UNDERSTAND THE BREATH OF YOUR ARGUMENT HERE. C IS ONE WAY OF IMPORTANT
TRAG A CHILD IN A SEXUALLY SUGGESTIVE MANNER AND C HAS MULTIPLE DESCRIPTIVE
ELEMENTS. IF WE AGREE AN I KNOW IT IS NOT YOUR POSITION THAT
C WAS UN CONSTITUTIONAL AS DRAFTED, WOULD YOU BE TELLING US DON'T WORRY ABOUT THAT
BECAUSE WE CAN TAKE PARTS OF A AN B AND PUT IT INTO R AN SOLVE IT.
WOULD THAT BE THE ARGUMENT YOU WOULD BE ADVANCING? MICHAEL L.
ZUCKERMAN: NOT SAG EXACTLY, UNITED STATES, IT WOULD BE SOMETHING MUCH AKIN TO WHAT
YOU DID IN MORTGAGE MER OR BURKERT IN HER, WHATEVER YOU WANT TO CALL THE
STATUTORY PRINCIPLE, WE'RE GOING TO CONSTRUE IT TO USE OTHERWISE THE WAY WE'RE
POSITING OTHERWISE FUNCTIONS WHICH IS DIFFERENT MANNER, SAME EFFECT AND
THAT THEREFORE, CONSTRUED THAT WAY, THE STATUTE DOES OPERATE IN HA CONSTITUTIONAL
MANNER MANY. IF YOU THINK THAT IT'S NOT WHAT THEY DID WHEN
THEY WROTE OTHERWISE I THINK YOU STILL CAN APPLY THAT READING; THAT'S THE DIFFERENCE
MUCH WHAT I WOULD SAY OUR REQUEST WOULD BE IN THAT FALL BACK SCENARIO.
THE COURT: YOU SAID EARLIER THAT ONLY C IS CHARGED IN THIS INDICTMENT.
WHAT IS CHARGED IN COUNT 8. MICHAEL L. ZUCKERMAN: YOUR HONOR,
I DON'T HAVE THE INDICTMENT UP IN FRONT OF ME. THE COURT:
LET ME HELP YOU IT REFERENCES WITHIN COUNT 8 THE DEPICTION -- LESS THAN A THOUSAND
ITEMS DEPICTING THE SEXUAL EXPLOITATION OR ABUSE OF A CHILD, BUT IT DOESN'T
TELL US WHETHER THAT TAKES US TO A, B OR C. CAN YOU?
MICHAEL L. ZUCKERMAN: YOUR HONOR, THAT WOULD -- TO THE EXTENT THAT THAT
IS DEPICTING THE SEXUAL EXPLOITATION OR ABUSE OF A CHILD IS JUST THE GENERAL
CATCHALL. I APOLOGIZE BECAUSE I DON'T HAVE IT IN FRONT OF ME I CAN'T --
THE COURT: AS I UNDERSTAND IT, THAT LANGUAGE TAKES US TO EITHER DEPICTING
A CHILD EVEN FWAJED IN A PROHIBITED SEXUAL ACT OR ASIM MU LAGS OR OF A CHILD
SO IT'S GOING TO TAKE US BACK TO A, B OR C, THE DEFENDANT IS ENTITLED TO KNOW THE
THEORY THE STATE IS PROCEEDING UNDER. HAVE YOU GIVEN A BILL
OF PARTICULARS AND CAN YOU TELL US IS IT A B & C? MICHAEL L.
ZUCKERMAN: YOUR HONOR, I DON'T KNOW. I WILL CORRECT ONE POINT OR ADD ONE POINT,
IF WHAT YOUR HONOR IS SAYING -- I'M THINKING IN THE MOMENT THAT IT IS
POSSIBLE THAT IT THEN EVEN REFERS BACK TO NOT WHAT WE'RE CALLING A B AND C BUT TO
THE PRIOR A AND B THE STATUTES, KOD INDICATIONSING IS A LITTLE CONFUSING.
THERE IS A DIFFERENT A, A IS THE, WHICH IS THE 2018 AMENDMENT THAT WE'RE HERE ABOUT,
WHICH INCLUDES IT IS OWN A, B AND C. THE COURT: I DON'T THINK
FROM THE PLAIN READING OF THE COUNTS THAT A REFERS TO -- THAT IT REFERS BACK
TO A DEPICTING A CHILD ENGAGED IN PROHIBITED SEX G YOU'LL ACT BECAUSE THE LANGUAGE
OF COUNT 8 SAYS, WITH SEXUALLY EXPLICIT COMMENTARY SUPERLY IMPOSED OVER B.R.'S
IMAGE, THE SPECIFIC LANGUAGE THERE TAKES US TO PORTRAYAL.
CAN YOU TELL US WHICH OF THE THREE THIS COUNT CHARGES? MICHAEL
L. ZUCKERMAN: AS I STAND BEFORE YOU, NOT HAVING IT IN FRONT OF ME, I CAN'T. I
THINK I WOULD HAVE TO CHECK. I THINK IT WAS UNDISPUTED AS THIS CASE HAS
COME UP. EVERYONE HAS AGREED AND THE DEFENDANT AS CONCEDED REP. PEDESTRIANLY THAT
HE'S ONLY BEING CHARGED UN C SO I THINK HIS I UNDERSTANDING IS THE SAME AS
OURSELVES. I'VE BEEN RELYING ON THAT. IT IS A CASE ABOUT THE LANGUAGE IN C.
HIS ARGUMENT BELOW WAS IF YOU READ C TO COVER TEXT, THEN IT WOULD MAKE C
UNCONSTITUTIONAL AN THEN OF COURSE THE APPELLATE DIVISION WENT FURTHER AN SAID WE'RE
GOING TO STRIKE DOWN C ENTIRELY NOT THAT WE'RE GOING TO READ IT NOT TO COVER
TEXT, WHICH WOULD DISPOSE OF HIS CASE, BUT WOULD BE A MUCH NARROWER REMEDY.
SO AS THE CASE HAS COME UP, IT'S BEEN LITIGATED AS IF THIS IS ALL ABOUT
C AN THE LANGUAGE IN C. I AM CERTAINLY HAPPY TO LOOK INTO WHETHER THERE IS
SOME ISSUE THERE IN WHETHERLY HAS NOTICE OF WHAT WAS CHARGED UNDER COUNT 8, YOUR HONOR,
I JUST DON'T P AS I STANDS BEFORE YOU KNOW OF ANY CONFUSION ABOUT THAT BECAUSE
I THINK WE'VE ALWAYS SEEN IT AND I'VE HEARD THEM ALWAYS SAY THAT THEY THINK HIS
LIABILITY IS ABOUT C. THE COURT: PUT THAT TO ONE SIDE DOES THE
STATUTE AS YOU UNDERSTAND IT EXTEND TO PHOTOS OF ATTRACTIVE CHILDREN WHO ARE
FULLY CLOTHED. MICHAEL L. ZUCKERMAN: NO. THIS IS THE MEANING
OF THE LANGUAGE THAT WE'RE -- WE THINK THIS IS WHAT THE LEGISLATURE WROTE OR IT IS
WITHIN SAVINGS OR NARROW CONSTRUCTION THAT THIS COURT COULD PUT ON IT. IF YOU
REQUIRE SUBSECTION C TO ACHIEVE THE SAME EFFECT AS A AND B AND REFLECT AN OBJECTIVE
PURPOSE, WHICH IS, AGAIN -- I MEAN, OBJECTIVE PURPOSE IS IN THE STATUTE SO I ALSO
WANT TO SAY EVEN IF YOU DON'T AGREE WITH ME ON READING IN A AND B, IMPORTING
A AND B, OBJECTIVE PURPOSE OF SEXUAL STIMULATION OR GRATIFICATION STILL TELLS YOU
SOMETHING PRETTY IMPORTANT BECAUSE THE WORD STIMULATION AN GRATIFICATION
ARE NOT JUST SEEING A PERSON AND THINKING THEY'RE ATTRACTIVE. YOU
CAN TURN ON TV AND SEE A PIKT, PIKT PIKT TURF SOMEONE AND SAY THAT PERSON IS ATTRACT
ACTIVE, BUT THAT WAS NOT CREATED FOR THE OBJECTIVE PRP OF FACILITATING
SOMEONE'S AROUSE SAUL, SEXUAL STIMULATION OR FWRAT INDICATION. L I THINK ON BOTH
OF THOSE REASONS, SORT OF ORDINARY, INNOCUOUS PICTURES OF A PERSON WHO IS
ATTRACTIVE IS AS PROPERLY CONSTRUED OR ON IN THE ALTERNATIVE NARROWING OR SAVINGS
CONSTRUCTION. THE COURT: WHAT ABOUT THE PHOTOS OF A CHILD AT
A BEACH OR AT A DANCE RECITAL, AT A SPORTING EVENT DRESSED IN PARTICULAR ATTIRE.
MICHAEL L. ZUCKERMAN: THE SAME ANSWER, YOUR HONOR, NOT COVERED.
NO ONE WOULD SAY THAT ACHIEVES THE EFFECT OF CONSTITUTING PRURIENT INTEREST ON
A CHILD AS OPPOSED TO FOCUSING ON THEIR INTIMATE PARTS OR CONTACTING THEIR
INTIMATE PARTS. IT ALSO DOES OF COURSE, SOMEONE IDIOSYNCRATIC
KALLY COULD HARBOR THAT PRIVATE VIEW BUT WE'RE TALKING ABOUT SUBJECTIVE PURPOSE.
JUSTICE WAINER APTER: YOUR ARGUMENT IS WE'RE FOCUSING ON
OBJECTIVE PURPOSE COMPORT WITH THE LANGUAGE OF SUBSECTION C WHICH DOESN'T USE
THE WORD OBJECTIVE AN SPECIFICALLY SAYS TO DEPICT A CHILD FOR THE PURPOSE
OF SEXUAL STIMULATION OR FWRAT INDICATION OF ANY PERSON WHO MAY VIEW THE DEPICTION
SO IT DOESN'T SAY OF AN OBJECTIVE PERSON, OF MOST PEOPLE, OF THE COMMUNITY
STANDARD WORTH OF PEOPLE IF YOU'RE TALKING ABOUT OBSCENITY. IT TALKS ABOUT OF ANY
PERSON. IT SEEMS LIKE THERE ARE, MANY, MANY PHOTOS SIMILAR TO THE ONES THE
CHIEF JUSTICE WAS JUST ASKING ABOUT THAT COULD BE FOR THE PURPOSE OF SEXUAL STIMULATION
OR GRATIFICATION OF ANY PERSON, OF ONE PERSON WHO MAY VIEW THEM.
MICHAEL L. ZUCKERMAN: SO, YOUR HONOR, LET ME ANSWER THAT, I WILL START WITH THE
END OF THE QUESTION, ABOUT THE ANY PERSON. I THINK THE LOAN -- THIS PART
IS COMMON LANGUAGE. YOU SEE THIS IN MANY TIF STATUTES IN VERY SIMILAR FORMS.
I THINK WHAT LEGISLATURES ARE DOING WHEN THEY WRITE ANY PERSON AND IT IS
IMPORTANT BECAUSE THESE ARE IMAGES THAT ARE NOT SEXUALLY STIMULATING OR GRATIFYING
TO MOST PEOPLE SO YOU NEED TO WRITE A STATUTE THAT MAKES CLEAR THAT THE FACT
THAT THE AVERAGE PERSON WOULD LOOK AT THIS AND BE DISGUSTED BY IT IS NOT THE REASON
THE DEFENDANT ESCAPES LIABILITY BECAUSE IT HAS TO REFLECT THE PURPOSE OF SEXUAL
STIMULATION OR GRATIFICATION FOR A PERSON EVEN IF THAT PERSON IS ACTUALLY A VERY
RARE PERSON IN THE POPULATION. CHIEF JUSTICE RABNER: WHAT
IF NO REASONABLE PERSON WOULD HAVE, VIEWING THE PHOTO, RESPONDED TO IT AS
DEPICTING OR ACHIEVING SEXUAL STIMULATION OR GRATIFICATION, WOULD THAT STILL FALL
UNDER THE STATUTE? MICHAEL L. ZUCKERMAN: NO REASONABLE PERSON
-- IT WOULD -- IT COULD FALL UNDER THE STATUTE BECAUSE -- AN THIS IS
IMPORTANT. IN FACT, I THINK THIS COURT SHOULD BE CAREFUL ABOUT THIS BECAUSE THE
STATUTE'S PREEXISTING CHILD PORNOGRAPHY, YOU KNOW, SECTION, SECTION A, THE
BIG A, NOT THE LITTLE A, THAT REFERS BACK TO DIFFERENT KINDS OF SEXUAL CONDUCT.
THAT INCLUDES SEKT YOU'LL CONDUCT THAT IS NUDE DID IT FOR THE PURPOSE OF
-- NUDE DID IT IF DEPICTED FOR THE SEXUAL GRATIFICATION THAT IS I IT SHOWS UP IN
A LOT OF INSTANCES SO THERE IS A REAL DANGER THAT THEIR ARGUMENT IF TAKEN
THAT WAY ACTUALLY PROVES WAY TOO MUCH BECAUSE THERE IS LOTS OF CHILD NUDE IT IN
ALL SORTS OF IMAGES -- YOU KNOW, MY COLLEAGUES THAT HAVE TO SPEND THEIR DAYS
DOING THIS SEE THAT IS NOT -- THAT WOULD MAKE TASH DASH THAT NO REASONABLE PERSON
WOULD FINE THAT SEXUAL STIMULATING OR GRATIFYING AND IT IS ABSOLUTELY ILLEGAL
AN SOCIETY HAS EVERY INTEREST IN MAKING THAT PROHIBITED. WHY DO WE
KNOW IT'S OBJECTIVE, THEY ZUS WROELT PURPOSE WE DON'T KNOW IF IT'S OBJECTIVE OR
SUBJECTIVE. YOU READ IT TO SAY YOU READ IT THE MOST DEFENSIBLE WAY, THERE ARE
MULTIPLE CASES THAT HAVE LOOKED AT THIS KIND OF LANGUAGE OR THIS KIND OF INQUIRY.
THEY CITE A VIEW, WE CITE A FEW, WE ACTUALLY AGREE WITH THEM THAT THOSE
CASES ARE PROHIBITIVE ON THIS,S I WOULD COMMEND CASE CITED, CASE CITED, CASE CITED,
CASE CITED, SEVERAL CASES FROM COLORADO PEOPLE VERSUS HANLY THE MOST RECENT
ONE, COURTS DO COME INTO THIS KIND OF BIT ACTUALLY, THEY HAVE TO FIGURE OUT WHAT
DOES IT MEAN WHEN YOU SAY PURPOSE OF ANY PERSON AND THEY LOOK AT THAT AN THEY
SAY IT REALLY HAS TO BE OBJECTIVE, YOU CREATE HUGE YOU REALLY WOULD CREATE HUGE
PROBLEMS IF THE IMAGE WERE TO GO GLING IN AND OUT OF COVERAGE, IF YOU WERE THINKING
ABOUT WHAT WAS INSIDE THE RECESS ES OF THE POSSESSOR'S MEEND SO I THINK
THAT'S THE MORE DEFENSIBLE READING. I AM NOT SUE THEY DISAGREE WITH THAT. I THINK
IF IT'S A JUMP ALL BETWEEN A READING THAT SAVES THE STATUTE THAT HELPS NARROW
AND PRESERVE THE STATUTE VERSUS ONE THAT KNOCKING IT ALL DOWN I THINK THIS COURT'S
PRESENTS DEN SUGGESTS YOU GO FROM THE ONE THAT IS NARROW AND ASSIST IT.
THE COURT: WE'RE TALKING ABOUT PHOTOS OF FULLY CLOTHING
CHILDREN. MICHAEL L. ZUCKERMAN: SO, I DON'T THINK WE ARE
NECESSARILY TASH DASH I'M SORRY, IF YOU MEAN THE FACTS OF THIS PARTICULAR CASE OR
THE COVERAGE OF THE STATUTE IN AN ABSTRACT WAY. THE COURT:
BOTH. MICHAEL L. ZUCKERMAN: SO, THIS CASE, THOSE IMAGES
WITHOUT THE TEXT ABSOLUTELY FALL OUTSIDE OF THE STATUTE, IF HE HAD JUST HAD THOSE
PICTURES OF THE CHILD, WE CALL KRIS STEEN IT'S NOT HER NAME IT'S JUST A
PSEUDONYM, IF HE HAD THOSE PICTURES OF KRIS STEEN AN SENT THE PICTURES AROUND IN
NOCUOUSLY HE HASN'T VIOLATED THE STATUTE EVEN IF HE IS SENDING THEM AROUND BECAUSE
HE HASH BORS SOME SEXUAL INTEREST. THIS CASE HAS VERY UNUSUAL
FACTS. I HAVED ASK AROUND NOBODY HAS HEARD OF A CASE LIKE THIS. HE IS
SUPERIMPOSING HIGHLY OBSCENE PHOTOGRAPHIC ON THE IMAGES. THERE ARE A NUMBER OF
REASONS THAT THAT WOULD BE -- THAT HE DOESN'T HAVE A FIRST AMENDMENT RIGHT TO DO
THAT. HE CONCEDES HE DOESN'T HAVE A FIRST AMENDMENT RIGHT TO DO THAT UNDERSTAND
THE OBSCENITY KNIT EXCEPTION. JUSTICE WAINER APTER: YOU MENTIONED
THAT A COUPLE OF TIMES BUT HE WASN'T CHARGED WITH THAT, RIGHT? THE.
MICHAEL L. ZUCKERMAN: HE WAS CHARGED WITH VIOLATING SUBSECTION C,
NOT OBSCENITY. MY POINT IS ONLY THAT HE IS TRYING TO GET RID
OF -- HE'S TRYING TO KNOCK DOWN THE STATUTE ON A THEORY THAT IT IS CONSTITUTIONAL
OVERBROAD WHICH MEANS IT HAS TO COVER THINGS THAT THERE IS NO FIRST AMENDMENT
RIGHT FOR THE GOVERNMENT TO PROHIBIT AN ALL I MANY A SAYING IS THERE IS ABSOLUTELY
A FIRST AMENDMENT RIGHT FOR THE FWOVT TO PROHIBIT. JUSTICE
WAINER APTER: IN SOME CASES SOMEONE MAKES AN OVERBREADTH CHALLENGE WHILE SAYING
THAT THAT STATUTE COULD CONSTITUTIONALLY BE APPLIED TO THEM IT'S JUST OVER
BROD IN A SUBSTANTIAL MAJORITY OF ITS CASES AN SHOWS THAT IT IS TRUE.
HERE HE IS NOT SAYING THAT C COULD EVEN CONSTITUTIONALLY BE APPLIED TO HIM, CORRECT?
HAD SK SUSSEX COUNTY I THINK HE HAS CONCEDED TASH DASH I WILL LET HIS
COUNSEL SPEAK FOR HIM, BUT MY UNDERSTANDING IS HE HAS ADMITTED HE HAS NO FIRST AMENDMENT
RIGHT TO SEND AROUND THESE IMAGES AN THEREFORE IF THE STATUTE COVERS HIM
THAT'S NOT EVIDENCE OF OVERBREADTH BECAUSE IT'S NOT OVER BROD AT ALL. HE DOES
HAVE AN ARGUMENT THAT THE STATUTE DOESN'T COVER HIS CONDUCT SO IF THIS COURT WAS
TO GO WITH A SORT OF LEN KNIT CONSTRUCTION THAT SAYS LOOK, YOU HAVE TO ACHIEVE
THIS PRURIENT EFFECT THROUGH, YOU KNOW, ONLY THROUGH IMAGES IT CAN'T INVOLVE TEXT;
THAT'S ITSELF A MUCH NARROWER WAY TO DISPOSE OF THIS CASE. THAT'S WHAT
THE DISPUTE BELOW WAS REALLY ALL ABOUT. THE APPELLATE DIVISION
WENT BEYOND THAT AND STRUCK DOWN THE WHOLE STATUTE AND THE OTHER TWO ADJOINING
SUBSECTIONS, TOO, BUT IF THIS COURT WERE TO SAY, LOOK, YOU KNOW, IF THIS COURT
WERE TO ACCEPT HIS STATUTORY ARGUMENT WHICH IS, LOOK, AS WE READ 24-4 B 1,
IT DOESN'T COVER IMAGES WHERE THE EFFECT IS ACHIEVED IN PART THROUGH TEXT EVEN IF
THAT TEXT IS OBSCENE, THEN HE WOULD BE LEGALLY INNOCENT UNDER THE STATUTE. IT
WOULD NOT BE TANTAMOUNT TO SAY AN THIS COURT WOULD NOT BE SAYING AND I URGE
THIS COURT NOT TO SAY THAT HE HAS A FIRST AMENDMENT RIGHT TO COMMUNICATE THAT STUFF.
COMMUNICATING THAT STUFF IS PRESCRIBE ABDOMINAL AS OBSCENITIES SIT WAY MAY
BE INVASION OF TORTS, THERE ARE LOTS OF REASONS SOCIETY HAS EVERY INTEREST IN TELLING
PEOPLE THAT IT'S NOT OKAY TO SEND THAT KIND OF STUFF AROUND WHICH WOULD BE
VERY DIFFERENT FROM AING THAT THE LEGISLATURE DID NOT HERE PUT HIM ON FAIR
NOTICE OR ACTUALLY WRITE A STATUTE THAT COVERS THESE UNIQUE FACTS OF CREATING
THIS EFFECT THROUGH KIND OF COMPOSITE IMAGES. I WILL SAY SOME OF IMAGES HAVE AN
IMAGE OF HIS AROUSED PENIS SO THE COURT WOULD NEED TO DISTINGUISH THAT.
IF THE COURT HAS NO -- THE COURT: ONE QUESTION
WITH RESPECT TO A AND B, I UNDERSTAND YOUR POSITION THAT IT WASN'T IMPLICATED
BEFORE THE APPELLATE DIVISION RULING IN THIS CASE. IS THERE
ANY ADDITIONAL PREEFG THAT THIS COURT WOULD NEED IN LIGHT OF WHAT WE'VE HAD
PRESENTED? MICHAEL L. ZUCKERMAN: YOUR HONOR, I THINK IF
THIS COURT IS CONSIDERING INVALIDATING A OR B IN ADDITION TO C, WHICH WE AGREE IS
SQUARELY BEFORE YOU, I THINK THERE WOULD NEED TO BE ADDITIONAL BRIEFING BECAUSE
THERE HAS REALLY NEVER BEEN -- THIS HAS NEVER BEEN LITIGATED IN THE MAIN
AS A CASE ABOUT A AND B AND DEFENDANT HAS ALWAYS CORRECTLY CONCEDED THAT THIS IS
ABOUT THE CONSTITUTIONALLY NALT OF C SO WE WOULD WANT TO DO SOME SUPPLEMENTAL
BRIEFING ON A AND B SGLFRMENT MORE THAN WHAT WE'VE ALREADY RECEIVED.
MICHAEL L. ZUCKERMAN: THAT BRIEFING WAS VERY MUCH FOCUSED ON C BECAUSE WE UNDERSTAND
-- I UNDERSTAND THIS COURT IS NOT BOUPD BY ARTICLE 3, BUT THE SAME SPIRIT
OF THE COURT CAN'T SORT OF ACT AS A COUNSEL OF REVISION AND JUST SAY, WELL THERE IS
ANOTHER STATUTE THAT IS NEARBY AN WE THINK THIS HAS CONSTITUTIONAL PROBLEMS,
SO WHILE WE'RE HERE WE WILL TAKE CARE OF THAT, TOO, THAT'S NOT FAIRLY IN THIS CASE
AN THERE IS NO JUDICIAL AUTHORITY TO STRIKE IT DOWN ON THIS POSTURE.
JUSTICE WAINER APTER: IN RESPONDING TO THE CHIEF JUSTICES QUESTION YOU SAID
IT IS FAIRLY IN THE CASE BUT YOU MEANT ONLY C AN NO. A AND B.
MICHAEL L. ZUCKERMAN: CORRECT, JUSTICE WAINER APTER. ONLY C IS THE ONE COURT WOULD
HAVE JUDICIAL POWER TO INVALIDATE OR UPHOLD. CHIEF JUSTICE
RABNER: THANK YOU, COUNSEL, WE WILL HAVE YOU BACK FOR REBUTTAL.
MICHAEL L. ZUCKERMAN: THANK YOU. MS. BEYROUTY. ALYCIA
I. BEYROUTY: THANK YOU, MR. CHIEF JUSTICE. GOOD MORNING YOUR HONORS
AND MAY IT PLEASE THE COURT. AS I STATED EARLIER I AM HERE
ON BEHALF OF THE CPA N J TO PROVIDE A UNIQUE AND PRACTICAL PERSPECTIVE ON
THE PROSECUTION SUBJECT TO THE PENDING LITIGATION. AS I STATED
EARLIER, I AM AN ASSISTANT PROSECUTOR AT THE MERCER COUNTY PROSECUTOR'S OFFICE
AN THERE I HOLD SEVERAL POSITIONS, BUT ONE OF THE PRIMARY POSITIONS BEING
THE CHIEF AGAINST THE INTERNET CRIMES OF CHILDREN OR WE CALL I I C A C I AM ALSO
A MEMBER OF NEW JERSEY STATE POLICE TASK FORCE FOR INTERNET CRIMES AGAINST
CHILDREN. IN OUR COUNTY THE I CAMDEN COUNTY UNIT IS THE SPECIFIC
UNIT IN WHICH WE PROCESS THESE TYPES OF CASES. WHEN I SAY THESE TYPES OF CASES
I WOULD LIKE TO HONE THE COURT IN ON THE TERMINOLOGY BECAUSE DIFFERENT TERM
INOLOGY HAS BEEN BEING USED BY THE VARIOUS PARTIES AND JUST IN GENERAL.
SO, THE CASES THAT WE'RE PROSECUTING ARE CASES THAT DEPICT THE SEXUAL EXPLOITATION
AND/OR SEXUAL ABUSE OF CHILDREN. THEY ARE MONDAYLY REFERRED TO IN MY PRACTICE
AREA AS C SAM, C S A.M. OR C S E M. AT THE OUTSET, I THINK IT'S IMPORTANT
FOR THIS COURT TO RECOGNIZE THAT THE STATUTE WRITTEN BY THE NEW JERSEY
LEGISLATURE HAS BROUGHT NEW JERSEY TO THE FOREFRONT OF THE BATTLE THAT WE ARE FIGHTING
AGAINST CHILD SEXUAL EXPLOITATION. THE STATUTE AS IT SITS NOW RECOGNIZES
THAT THERE IS NO SEPARATION BETWEEN TRADITIONAL AN TRACK CONE YAN TERMINOLOGY
SUCH AS QUOTE, CHILD PORNOGRAPHY, UNQUOTE OR QUOTE, CHILD EROTICA, UNQUOTE
BECAUSE THOSE TERMS IN AND OF THEMSELVES BY WAY OF DEFINITION TO DO NOT APPROPRIATELY
REFLECT WHAT IS BEING DEPICTED IN THESE IMAGES WHICH DOES INCLUDE WHAT
SUBSECTION C OF THE STATUTE ARLTS. THE DEPARTMENT OF JUSTICE OTHER STATES IN OTHER
COUNTIES THE NEW JERSEY LEGISLATURE HAS FORMULATED THIS STATUTE TO REFLECT TRULY
WHAT THESE IMAGES DEPICT THE C SAM OR C S E M. WHAT NEW JERSEY
HAS OGED IS THAT THE WORLD IS EVOLVING. WE HAVE ESCALATED FROM TRADITIONAL
PHOTOGRAPHY AN SIN MET TO GO GRAPH FEE TO NOW COMPUTER GENERATED IMAGES OF CHILDREN,
REAL CHILDREN, AS WELL AS COMPUTER GENERATED IMAGES OF ARTIFICIAL INTELLIGENCE
OR A I WHICH IS COMMONLY COMING OUT. HOWEVER, ALL IN ALL, NO
MATTER HOW THESE IMAGES ARE BEING CREATED IT STILL DEPICTS THE SAME THING.
THE TWO PRIMARY FOCUSES I WOULD LIKE TO TALK ABOUT REGARDING THE PRACTICE AREA
IS THE HARM THAT WE -- JUSTICE SOLOMON: IF I CAN CLARIFY. IT'S
NOT THE IMAGE HERE THAT ANYONE IS ARGUING NO BODY IS ARGUING THAT THE IMAGE
IS HA WHAT VIOLATES THE STATUTE, ARE THEY? FORGET THE PRINT,
FORGET THE TEXT. THE IMAGES THEMSELVES, I THOUGHT I HEARD IT FROM THE STATE,
THAT'S NOT WHAT IS AT ISSUE. IT'S THE TEXT SUPERIMPOSED ON THE PHOTO THAT
MAKES IT EXPLOITING THE CHILD, THAT CAUSES IT TO EXPLOIT -- EX SPLOITS THE CHILD.
ALYCIA I. BEYROUTY: YES, BUT IT IS THE IMAGE ITSELF THEN
BECAUSE WE'RE TRYING TO UNZ AND ARTICULATE WHETHER OR NOT THE IMAGE FALSE UN SUBSECTION
C. JUSTICE SOLOMON: WITHOUT THE TEXT, DOES THIS IMAGE
VIOLATE ANYTHING UNDER ANY CIRCUMSTANCES WITH RESPECT TO THIS DEFENDANT OR ANY
OTHER DEFENDANT. ALYCIA I. BEYROUTY: WHICH IMAGE ARE YOU
SPEAKING OF. JUSTICE SOLOMON: OF THE YOUNG LADY IN WHATEVER
ATTIRE SHE WAS IN. ALYCIA I. BEYROUTY: SO, WITHOUT THE IMAGE OF
THE ERECT CLOTHED PENIS NEXT TO HER JUST THE TEXTUAL ONE, NO,S I AGREE WITH MY
COLLEAGUE THAT IF IT IS SIMPLY A TRESED IMAGE OF A CHILD --
JUSTICE SOLOMON: AND DOES THE TEXT SUPERIMPOSED ON THAT DRESSED IMAGE OF A CHILD
MAKE ANY DIFFERENCE? ALYCIA I. BEYROUTY: YES, SIR.
JUSTICE SOLOMON: IS THAT WHAT TRIGGERS THE STATUTE. ALYCIA I.
BEYROUTY: YES. JUSTICE SOLOMON: ON THE PIKT.
ALYCIA I. BEYROUTY: YES. IN THIS INSTANCE, THE TEXT THAT IS SUPERIMPOSED OVER
TOP OF THE CHILD IN THIS PARTICULAR CASE DOES CERTAINLY RISE TO THE LEVEL OF A
VIOLATION OF SUBSECTION C. JUSTICE PATTERSON: IS THAT SOMETHING
THAT YOU, IN YOUR EXPERIENCE DOING THIS KIND OF WORK AT THE PROSECUTOR'S
OFFICE OR YOUR COLLEAGUES IN PROSECUTOR'S OFFICES ELSEWHERE HAVE SEEN HAPPEN A
LOT? WE'VE TALKED ABOUT IT BEING A RELATIVELY RARE OCCURRENCE.
CERTAINLY IT'S NOTHING I'VE SEEN IN REVIEWING CASES IN OUR COURT.
THE SUPERIMPOSED WORDS ON AN OTHERWISE ARGUABLY INNOCUOUS IMAGE.
ALYCIA I. BEYROUTY: JUSTICE PATTERSON, WE ARE NOT SEEING THAT OFTEN BY ANY MEANS.
HOWEVER, AS I INDICATED, THIS WORLD OF CHILD EXPLOITATION CHANGES ON A DAILY
BASIS. WE CONTINUE TO SEE AND WHEN I SAY WE, THE PROSECUTORS, BUT REALLY PRIM
ARILY OUR DETECTIVES THAT ARE IN THESE UNITS ARE SEEING SOME OF THE MOST HORRIFIC
THINGS AN THAT DOES INCLUDE JOURNALS AN THINGS LIKE THAT. NOW, THE JOURNALS
DON'T HAVE NECESSARILY PHOTOS, BUT WE'RE SEEING WHEN WE CONDUCT SEARCH WARRANTS
OF RESIDENCES AS WELL AS FORENSIC EXAMINATIONS IN PHONES, WE ARE SEEING
VERY STRANGE THINGS START TO COME ABOUT BECAUSE OF THE WAY IN WHICH TECHNOLOGY
IS CHANGING. JUSTICE PIERRE-LOUIS: YOU MENTIONED
TECHNOLOGY AND ARTIFICIAL INTELLIGENCE IN CREATING THESE IMAGES. IS
THAT SOMETHING YOU'RE STARTING TO SEE AND ARE YOU ARGUING THAT THOSE TYPES OF IMAGES
WOULD FALL UNDER SUBSECTION C? THIS. ALYCIA I. BEYROUTY:
SO, IN TERMS OF ARTIFICIAL INTELLIGENCE, THE WAY THAT IT'S BEING STUSED
NATIONWIDE, I OFTEN FWOE TO THE INTERNET CRIMES AGAINST CHILDREN TRAINING SO WE
DO WORK WITH OUR COLLEAGUES ACROSS THE UNITED STATES. MANY WE ARE STARTING TO
SEE THOSE AN WHEN WE TALK ABOUT A I, IT'S NOT NECESSARILY IMAGES OF THESE
MADE UP CHILDREN. IT'S A I IMAGES THAT ARE TAKEN FROM A PIKT OR AN IMAGE OF AN
ACTUAL CHILD AND THEY ARE COMPUTER GENERATING THEM THROUGH A I SOFTWARE
AN PROGRAMS AN WE ARE SEEING EK STREAMLY HORRIFIC IMAGES. JUSTICE
PATTERSON: IS THAT DISTINCTION THAT JUSTICE PIERRE MENTIONED, A DISTINCTION
BETWEEN A REAL CHILD AND AN ARTIFICIALLY CREATED CHILD BY A A IS THAT ONE
OF THE BOUNDARIES OF PROSECUTION FOR THIS -- FOR CHILD EROTICA UNDER THE ENDANGERING
STATUTE THAT WE'RE LOOKING AT TODAY? IF AN IMAGE OF A CHILD
WAS CREATED BY A I, NO EXISTING CHILD'S PHOTOGRAPH IS BEING USED IN ANY WAY,
IS THAT TASH DASH IF IT OTHERWISE MEETS THE STANDARD SOMETHING THAT CAN BE
PROSECUTED UNDER THE ENDANGERING STATUTE? ALYCIA I. BEYROUTY:
SO, JUSTICE PATTERSON, IF YOU ACTUALLY LOOK IN THE DEFINITION PORTION OF 24-4
THE TERM CHILD IS DEFINED AS A REAL CHILD SO CURRENTLY UNDER OUR STATUTE
AND IT IS SOMETHING THAT HAS BEEN CONTINUOUSLY BEING STUSED AMONGST THE
RELEVANT PARTIES THAT HAVE STAKE IN THE PROSECUTION AN OR THE DEFENSE OF THESE
TYPES OF CASES, A I, IF IT WAS TRULY NOT A REAL CHILD, ALTHOUGH, TRYING TO FIGURE
THAT OUT IS A WHOLE DIFFERENT STORY. I COULD STAND UP HERE FOR HOURS AN TALK
ABOUT THAT, BUT, NO, UNDER THE CURRENT STATUTE AS IT SITS, IT TUESDAY NOT COVER
IMAGES THAT ARE NOT OF REAL CHILDREN. JUSTICE MICHAEL NORIEGA:
WHERE IS THAT IN THE STATUTE? I AM LOOKING AT 2C:24-4 B ONE AS USED IN
THE SUBSECTION, CHILD MEANS ANY PERSON UNDERSTAND 18 YEARS OF AGE. YOUR READING
OF THAT IS THAT PERSON MEANS REAL PERSON. IT CAN'T BE SIMULATED?
ALYCIA I. BEYROUTY: THAT IS CURRENTLY WHAT THE UNDERSTANDING IS, YOUR HONOR. I
WOULD CERTAINLY URGE THE LEGISLATURE TO MAKE THAT MORE CLEAR, AGAIN, AS TECH
NOLOGY CONTINUES TO EVOLVE. JUSTICE MICHAEL NORIEGA: WHAT IF THE
SUSPECT IS AN ART TIS AN THE SUSPECT DOES A HAND TRAUN RENDERING OF THIS
PARTICULAR CHILD THAT LOOKS ALMOST PHOTO REALISTIC, IDENTICAL WITH ALL THE SAME
LANGUAGE PUT ON, WOULD YOU SUGGEST THAT WAS THE IDENTICAL SITUATION.
ALYCIA I. BEYROUTY: I THINK HIETS EASE A CASE-BY-CASE BASIS YOUR HONOR. IT
DEPENDS ON THE FACTS AND CIRCUMSTANCES WE HAVE. IF, FOR EXAMPLE, IN THAT
INSTANCE WE HAVE THE OFFENDER THAT DOES HAVE A PHOTOGRAPH IMAGE THAT THEY TOOK AND
THAT'S ALSO IN THEIR POSSESSION THAT WE CAN DEMONSTRATE THAT IT IS A REAL
CHILD IN EX ISZ STENS EXIST #12E7BS, EXISTENCE, THEN I WOULD ARGUE THAT YES, IT IS
CERTAINLY POSSIBLE. WHAT I ASK THE COURT TO CONSIDER IS THE
APPELLATE DIVISION HAS ESSENTIALLY LOOKED DOWN UPON THE PROSECUTORS AN THE LAW
ENFORCEMENT IN THIS STATE IN ITS DECISION. THE COURT: LET'S
LOOK AT THE LANGUAGE OF THE STATUTE AND NOT TALK ABOUT LOOKING DOWN. T.
SECTION 4 MAKES IT AN OFFENSE TO PHOTOGRAPH OR FILM A CHILD. WE'RE
TALKING ABOUT REAL PEOPLE THAT ARE PHOTOGRAPHED OR FILMED, RIGHT? PAI BAI YES,
MR. CHIEF YUS STIS. CHIEF JUSTICE RABNER: IT WOULD NOT EXTEND
TO WHAT WE HAVE JUST BEEN DISCUSSING BEYOND THAT, CORRECT?
ALYCIA I. BEYROUTY: IMAGES OF NOT A REAL CHILD, CORRECT, SIR.
JUSTICE PATTERSON: YOU'RE SAYING THAT IS BECAUSE OF THE DEFINITION OF CHILD THAT IS
IN THE STATUTE. ALYCIA I. BEYROUTY: YES.
JUSTICE WAINER APTER: CAN WE TALK A LITTLE ABOUT ABOUT THE U.S. SUPREME COURT
IN THIS AREA HAS SAID CHILD PORN NOTHING FWRAF FEE CAN BE CRIMINALIZED WITHOUT
OFFENDING THE FIRST AMENDMENT BECAUSE IT ITSELF IS A RECORD OF CHILD ABUSE
WHICH NOT ONLY IS A CRIME BUT A CRIME THAT SEVERELY HARMS CHILDREN, I AM TAKING
THAT FROM FERBER AN ASHCROFT BUT IT ALSO SAYS THAT A PHOTO IS QUOTE INNOCENT
IN AN OF ITSELF THAT WAS SIMPLY USED BY THE DEFENDANT FOR QUOTE, IMMORAL PURPOSES,
CAN'T BE CRIMINALIZED SO HOW DO YOU MAP THAT ONTO THE DISCUSSION THAT WE'RE
HAVING ABOUT C? HOW DO WE SEE THIS UNDER THAT FRAMEWORK? HAD.
ALYCIA I. BEYROUTY: I REALLY APPRECIATE THE QUESTION BECAUSE
THAT'S A POINT I THOUGHT WAS REALLY IMPORTANT TO BRING TO THE COURT'S ATTENTION
REGARDING THE HARM TO CHILDREN. IN ALL THE ARTICLES I REVIEWED
AS WELL AS THE UNITED STATES SUPREME COURT PRECEDENT IN THIS SUBJECT AREA,
ONE OF THE MAJOR THINGS THAT I NOTICED IS THAT THE TERMINOLOGY, AS I MENTIONED
EARLIER, IS BEING USED INCORRECTLY. OFTENTIMES, WHEN THE COURTS
THUS FAR AND/OR SCHOLAR REARTICLES DISCUSS CHILD EROTICA, IT GENERALLY INCLUDES
ITEMS THAT ARE MORE AKIN TO PARAPHERNALIA, JUST LIKE WITH DRUGS, MORE LIKE
PARAPHERNALIA. SO, FOR EXAMPLE, IN SOME OF THE SUPREME COURT
PRECEDENT, IT DISCUSSES WHEN THEY WERE EXECUTING SEARCH WARRANTS IN SOME M OF THE
HOUSES THEY WERE LOEK INDICATING SEARS CATALOGS THAT HAD CHILDREN IN THEM.
THEY ALSO LOCATED CHILD SEX TOYS. L THEY ALSO LOCATED, INNOCUOUS
PHOTOGRAPHS OF CHILDREN. AND THESE WERE IN SOME OF THE CASES WHERE YOU'RE DEALING
WITH A TRUE PEDOPHILE WHO IS AROUSED BY EVEN INNOCUOUS PHOTOGRAPHS. HOWEVER,
HERE, IN THE STATUTE THAT THE NEW JERSEY LEGISLATURE HAS CREATED AND FORMULATED,
IT IS NOT THOSE ITEMS. AGAIN, THERE IS NO LANGUAGE IN THE STATUTE
AS IT SITS THAT THIS IS QUOTE, CHILD EROTICA. L IT US DOESN'T SAY IT'S
CHILD PORN NOTHING PHOTOGRAPHY. WHAT THE LEGISLATURE SAYS IN THE SENATE BILL,
LEGISLATIVE HISTORY PORTION IS WE ARE CRIMINALIZING ITEMS INVOLVE CHILD
SEXUAL ABUSE MATERIAL BECAUSE OF ALL OF THE HARM IT IT IS CAUSING TO OUR VICTIMS.
TO FURTHER FWE ON DOIN DOWN IN RESPONDING TO YOUR QUESTION,
MAD MANY TA JUSTICE IS THAT WE ARE SEEING IN THESE INSTANCES ARE VICTIMS ARE SUFFERING
FROM DEPRESSION. OUR VICTIMS ARE SUFFERING FROM SELF HARM, SUICIDAL
IDEATION AND THERE ARE EVEN INSTANCES THAT I HAVE HEARD ACROSS THE NATION THAT VICTIMS
THAT FALL SUBJECT TO CHILD SEXUAL ABUSE MATERIALS ARE COMMITTING SUICIDE.
IT AFFECTS THEM, THEM SEFL AS WELL AS THEIR FAMILIES WHICH THIS COURT AND THE
LEGISLATURE HAS RECOGNIZED FOR EVEN CHILD SEXUAL ABUSE VICTIMS, IT DOESN'T
JUST INVOLVE THE CHILD, IT INVOLVES THEIR FAMILIES. IF THIS
COURT WERE TO AFFIRM THE APPELLATE DIVISION DECISION, IT ESSENTIALLY ELIMINATES
THESE INDIVIDUAL STATUSES AS VICTIMS. IF WE DO THAT, IT IS FWOEG TO EFFECTIVELY
ELIMINATE THEIR ABILITY TO OBTAIN ASSISTANCE IN THEIR RECOVERY THROUGH V C C O
AGS VICTIMS OF CRIMES. MANY OF OUR VICTIMS ARE ECONOMICALLY
UNABLE TO GO AHEAD AND SEEK OUT THE COUNSELING THAT THEY NEED OR THE
MEDICAL ATTENTION THAT THEY NEED IN ORDER TO FIX THE WOUNDS THAT HAVE BEEN SELF
INFLICTED ON THEM. OR SOME OF THE VICTIMS ACT OUT IN AN INAPPROPRIATE WAY OR
ACT OUT SEXUALLY. BY AFFIRMING THE APPELLATE DIVISION DECISION
IT DOES ELIMINATE THE VICTIM'S STATUS. CHIEF JUSTICE RABNER:
THE QUESTION BEFORE THE COURT IS THE CONSTITUTIONAL OF C AN POSSIBLE PLEA A
AND B AS WELL, WHETHER IT'S OVERBROAD, WHETHER IT'S VAGUE. YOUR
BRIEF ACTUALLY TALKS ABOUT A AND B AND SAYS IT SUFFERS FROM NONE OF THOSE PROBLEMS.
CAN YOU SPEAK TO A FOR JUST A MOMENT, A AND B, WHICH SAYS IN
ITS TEXT THAT IT EXTEND TO POSES THAT EMIT SENSE U A LETTER WITH SUFFICIENT IMPACT
TO CONCENTRATE PRURIENT INTEREST ON A CHILD. WHAT DOES THAT
MEAN IN PLAIN TERMS AND WHERE IS THE LINE BETWEEN PERMISSIBLE AN IMPERMISSIBLE
CONDUCT THERE. ALYCIA I. BEYROUTY: IT'S A CASE BY CASE AN
FACT SENSITIVE IN TERMS OF WHAT THE PROSECUTORS AN DETECTIVES ARE LOOKING
AT. ONE OF THE EXAMPLES THAT WE PROVIDED, I CURRENTLY HAVE
A CASE THAT IS BEING HELD, WAITING TO FIND OUT THE OUTCOME OF THIS BECAUSE WE CONDUCTED
A SEARCH WARRANT OF A TRENS FOR AN IMAGE FROM THE NATIONAL CENTER FOR MISS
OR OR EX SPLOID CHILDREN AND IT WAS AN IMAGE OF A PREPUB BES SANT CHILD. THE
DETECTIVES IN MY OFFICE WORKED THAT CASE UP. WE CONDUCTED A SEARCH WARRANT
THAT INCLUDED THE DEVICES OF THE DEFENDANT AN WITHIN THE DEFENDANT, DEVICES, WE
DID LOCATE IMAGES OF CHILDREN, DEFINITELY PREPUB BES SENT, I WOULD SAY BETWEEN
THE AGES OF 8 AN 10 YEARS OLD AND THEY ARE TRESED THE LINGERIE OR TOMORROW MIN
NAT TRICKS STYLE CLOTHING, BENT OVER, YOU KNOW, LIPS PUK KERED AND STAIRING
OUT INTO SPACE. SO, YOU KNOW, IN THAT PARTICULAR EXAMPLE, WE WOULD
SUBMIT THAT AND I WOULD SUBMIT AS A PROSECUTOR THAT THAT WOULD FALL UNDER THAT
SFLFRMTHS DOES THE TERMINOLOGY, EMITS SENSE U A LETTER PROVIDE ADEQUATE
NOTICE FOR WHAT IS INAPPROPRIATE AND WHAT IS PERMISSIBLE? ALYCIA I.
BEYROUTY: YES, YOUR HONOR. I DO BELIEVE SO. AND, YOU KNOW, IT IS FUNNY IN
PREPARATION FOR THIS, I WAS STUSING, YOU KNOW, COMING BEFORE THIS COURT TO
ARGUE WITH SOME OF MY FRIENDS WHO ARE MOT IN THE LEGAL FIELD WHATSOEVER AND I WAS
EXPLAINING TO THEM WHAT THIS SAID AND THEY SAID WOW, THAT SEEMS LIKE VERY OBVIOUS
THAT YOU CAN'T HAVE OR TRBT OR KREE DISTRIBUTE OR CREATE ITEMS THAT SHOW CHILDREN
IN A SEXUALLY EXPLOIT I HAVE WAY. THE OTHER ISSUE THAT WE ARE
HAVING AND THAT WE ARE SEEING IN THESE CASES, YOUR HONOR, IS THAT THIS, IF
THIS APRIL DECISION IS AFFIRMED IERT EASE GOING TO INCREASE AND.
ONE OF THE QUESTIONS THAT I RECEIVED FROM THE ATTORNEY GENERAL'S OFFICE AS A MEMBER
OF THE I TACK TASK FORCE WAS HOW MANY CASES DO YOU HAVE THAT DEALS WITH,
QUOTE, UNQUOTE, CHILD EROTICA. MY RESPONSE TO THEM WAS ARE WE TALKING ABOUT ONLY
CASES THAT ARE CHARGED UNDER SUBSECTION C OR CASES THAT JUST INCLUDE SUBSECTION
C. THE RESPONSE THAT I RECEIVED WAS IT WAS THOSE FOR WHICH
JUST WERE CHARGED SOLELY UNDERSTAND SUBSECTION C, BUT WHAT I WOULD LIKE THE COURT
TO CONSIDER IS THAT THAT IS NOT -- THOSE NUMBERS THAT YOU RECEIVED ARE NOT
INDICATIVE OF HOW MANY CASES WOULD BE AFFECTED IN THE STATE OF NEW JERSEY. AND
THE LIABILITY WOULD CERTAINLY CHANGE OR BE ELIMINATED TO THESE CRIMINAL
DEFENDANTS. JUSTICE PATTERSON: ARE YOU INDICATING THAT
THE MAJORITY OF CHILD EROTICA PRRGSZ ARE PROSECUTIONS ARE PURSUANT TO
SUBSECTIONS A OR B? M. ALYCIA I. BEYROUTY: IT ENCOMPASSES,
YOUR HONOR, A MIX OF, AGAIN, GOING BACK TO THE TRADITIONAL TERMS WHICH I DON'T USE
IN MY PRACTICE, BUT -- JUSTICE WAINER APTER: INSTEAD OF USING
THE TERMS, CAN YOU REFER TO PARTS OF THE STATUTE. ALYCIA I.
BEYROUTY: CERTAINLY, YOUR HONOR. IT INCORPORATES NOT ONLY IMPORTANT
TRAG A CHILD IN A SEXUALLY SUGGESTIVE MANNER BUT ALSO THE PROHIBITED SEXUAL
ACT. SO, OUR CASES, THE MAJORITY OF THEM INCLUDE A MIXTURE
OF BOTH A AN B SO WE'RE TALKING ABOUT A MIXTURE OF CHILDREN EVEN FWAJ IN WHAT IS
CALLED THE PROHIBITED SEXUAL ACTS AND/OR CHILDREN BEING PORTRAYED IN A SEXUAL
LY SUGGESTIVE MANNER. JUSTICE PATTERSON: TALKING ABOUT TERMINOLOGY
WHEN YOU SAY THE PROHIBITED SEXUAL ACTS WE'RE TALKING ABOUT POSING, COMPOSITION,
FORMAT OR ANIMATED DETAILS OR ARE YOU TALKING ABOUT. JUSTICE
WAINER APTER: NO THAT'S THE A AN B THAT COMES BEFORE. JUSTICE
PATTERSON: YOU'RE TALKING LARGELY. ALYCIA I. BEYROUTY: INCLUDING
WHAT I AM TALKING ABOUT ARE DEFINED FROM SUBSECTIONS A THROUGH J SO THEY
INCLUDE TASHG DASH TODAY OUR CASES INCLUDE A MIX MUCH THOSE, AS WELL AS THE IMPORTANT
TRAG A CHILD IN A SEXUALLY SUGGESTIVE MANNER BECAUSE OFTENTIMES WE FIND
PEDESTRIAN FILES DO POSSESS POTENZA TYPES OF IMAGERY. JUSTICE
PATTERSON: THIS IS CHILD PORG NOTHING PHOTOGRAPHY AN CHILD EROTICA.
ALYCIA I. BEYROUTY: IF THIS PORTION OF THE STATUTE WERE TO BE STRICKEN DOWN
THE WAY THAT THE FWRADING SYSTEM WORKS IS IT IS DEPENDENT UPON THE NUMBER OF
IMAGES. FOR STRAIGHT POSSESSION OF CHILD ABUSE MATERIAL OR CHILD EXPLOITATION
MATERIAL, YOU MAY POSSESS KNOWINGLY AN ALL THAT, BETWEEN ONE AN 999 IMAGES AN THE
PENALTIES IN THAT REALM DO NOT CALL FOR MEGAN'S LAW OR MANDATORY PAROLE
SUPERVISION FOR LIFE. IT IS ONLY -- JUSTICE PATTERSON: WE HAVE
A CONSTITUTIONAL ISSUE HERE AND I UNDERSTAND THERE ARE SERIOUS
RAMIFICATIONS FOR THE CASE AND FOR OTHER PROSECUTIONS, BUT WE REALLY HAVE A
SINGLE INQUIRY HERE, TWO PARTS TO ONE INQUIRY AND THAT IS SUBSECTION C
CONSTITUTIONAL AN PERHAPS WE HAVE A AND B AS WELL. ALYCIA I.
BEYROUTY: I UNDERSTAND THAT, YOUR HONOR. I UNDERSTAND, HOWEVER,
THAT THIS COURT IS VERY POLICY DRIVEN IN REVIEWING A LOT OF THE OPINIONS AND
DECISIONS THAT COME BEFORE IT AN I THINK THAT PUBLIC POLICY DOES HELP THE COURT
IN ANALYZING AND SCRUTINIZING THE STATUTORY CONSTRUCTION THAT YOU HAVE BEFORE
IT. UNDERSTANDING TRULY TASH DASH THE OTHER THING TO NOTICE IS THIS
AMENDMENT HAS BEEN IN EFFECT FOR EFFECTIVELY 6 YEARS SO THE FACT THAT WE ARE HERE
BEFORE THIS COURT SIX YEARS LATER SHOULD, ALSO, HAVE SOME ACKNOWLEDGMENT IN THE
COURT THAT IS IT TRULY AN ISSUE ARE THESE DEFENDANTS NOT BEING PUT ON FAIR
NOTICE. JUSTICE PIERRE-LOUIS: THAT MIGHT BE A REFLECTION ON
WHAT YOU JUST STATED THAT A MAJORITY OF YOUR CASES INCLUDE A XINGS OF A AND B.
ALYCIA I. BEYROUTY: IT CERTAINLY COULD, YOUR HONOR, BUT THAT
DOESN'T MEAN THAT ALL OF OUR CASES ALWAYS ENCOMPASS BOTH. THERE ARE A NUMBER OF
CASES THAT DO ONLY INCORPORATE A PORTION OF, AGAIN, THE QUOTE UNQUOTE CHILD
EROTICA, MEANING A B OR C IN WHAT IS A PORTRAYAL OF CHILDREN IN A SEXUALLY
SUGGESTIVE MANNER, BUT YET WE STILL HAVEN'T COME BEFORE THIS COURT BECAUSE THERE
IS ADEQUATE NOTICE PROVIDED TO DEFENDANTS. THE COURT: COUNSEL, I
THINK WE HAVE YOUR POSITION, IS THERE ANYTHING YOU WOULD LIKE TO ADD.
ALYCIA I. BEYROUTY: NO, YOUR HONOR, THANK YOU VERY MUCH. THE
COURT: THANK YOU, MS. GIFFORD. ALISON GIFFORD: GORNG R GOOD MORNINGS AND
MAY IT PLEASE THE COURT. I'D LIKE TO START BY REITERATING THE DEFENDANT
OF HERE IS NOT ARGUING THAT THE WORDS HE ADDED OVER THE INNOCENT IMAGE ARE PROTECTED
SPEECH NOR IS HE ARGUING THAT THE, CONSTITUTIONALLY APPROVED LANGUAGE,
THE PROBLEM HERE IS THAT THE SLOOILD AMENDMENT AS WRITTEN COVERS TOO MUCH PROTECT
ED SPEECH, I'D LIKE TO ADDRESS A AND B SHOULD BE READ INTO C BEFORE REALLY
TURNING INTO WHAT WILL SUBSECTION C COVERS AND WHY IT'S SUBSTANTIALLY OVER BROOD.
UNLESS THIS COURT HAS ANY QUESTIONS I'LL RELY ON MY BRIEF FOR THE VAGUENESS
OF SUBSECTION C BUT I'D LIKE TO TOUCH ON SECTIONS A AND B BEFORE ENDING.
SO STARTING WITH THE READING PURIENT INTO SUBSECTION C, THE 3 SUBSECTIONS
ARE CLEARLY SEPARATED BY THE WORD OR, SHOWING THAT THESE ARE THREE DIFFERENT
DEFINITIONS OF HOW TO PORTRAY A CHILD IN A SEXUALLY SUGGESTIVE MANNER. MOREOVER
AS WAS POINTED OUT THE DEFINITION OF OTHER WISE IS IN A DIFFERENT WAY OR MANNER,
SO THIS IS MEANT TO COVER SDPIKSS THAT DON'T MEET THE ELEMENTS OF A AND B BUT STILL
PORTRAY A CHILD IN A SEXUALLY SUGGESTIVE MANNER BECAUSE THEY OTHERWISE DEPICT
THE PURPOSE FOR AROUFG ANY OTHER PERSON. THAT'S ALL I'M GOING TO SAY ON THAT,
I'D LIKE TO FOCUS ON SUBSECTION C. JUSTICE PATTERSON: BEFORE
YOU LEAVE A AND B, WERE THE PARTIES ON NOTICE BEFORE THE APPELLATE DIVISION
THAT THERE WAS ABOUT TO BE A RULING ON THE CONSTITUTIONALITY OF A AND B?
ALISON GIFFORD: SO I WAS GOING TO TOUCH UPON A AND B LATER, BUT I'M HAPPY
TO SPEAK ABOUT IT NOW. THE PARTIES WERE NOT AWARE THAT THE APPELLATE DIVISION
WAS GOING TO REACH SUBSECTIONS ACHT AND B BUT I THINK THE APPELLATE DIVISION
RIGHTLY RECOGNIZED THAT THE CHILD EROTICA AMENDMENT SHOULD BE READ AS A WHOLE AND
THAT SUBSECTIONS A AND B SUFFER FROM MANY OF THE SAME PROBLEMS AS SUBSECTION
C. CHIEF JUSTICE RABNER: DID YOU ARGUE THAT A AND B ARE
UNCONSTITUTIONAL BEFORE THE TRIAL COURT OR THE APPELLATE DIVISION.
ALISON GIFFORD: NO YOUR HONOR AND THAT'S WHY THE FOCUS HERE IS REALLY ON SUBSECTION
C BUT THERE ARE SEVERAL REASONS I THINK THIS COURT SHOULD ADDRESS THE
CONSTITUTIONALITY OF A AND B. I THINK IT CONCERNS A MATTER OF GREAT PUBLIC INTEREST
CONSIDERING THERE'S 50 ACTIVE PROSECUTIONS UNDER THE CHILD EROTICA AMENDMENT AS
A WHOLE. JUSTICE WAINER APTER: HOW DO YOU KNOW THAT
THERE ARE 50 PROSECUTIONS, THAT MEANS UNDER A B OR C. ALISON GIFFORD:
WE DON'T KNOW EXACTLY HOW THOSE BREAK DOWN, I THINK THIS COURT HAS A FULL RECORD
AND FULL BRIEFING TO ADDRESS A AND B IF IT WISHES. JUSTICE WAINER
APTER: IN ADDITION TO NOT ARGUING THAT A AND B WERE UNCONSTITUTIONAL YOU DID
SPECIFICALLY STATE IN YOUR APPELLATE BRIEF THAT A AND B WERE "NOT APPLICABLE TO
THIS CASE, RIGHT? ALISON GIFFORD: DEFENDANT HERE WAS INDICTED
UNDER SUBSECTION C SO THAT'S WHY AGAIN THE FOCUS IS REALLY ON SUBSECTION
C. IN THE OVER BROAD CONTEXT STANDING IS PARTICULARLY BROAD BECAUSE THE IMPORTANCE
THAT A LAW DOES NOT REACH PROTECTED SPEECH OF OTHERS AND SO I THINK THERE'S
A RILE POLICY REASON FOR THIS COURT TO ADDRESS THE CHILD EROTICA AMENDMENTS AS
A WHOLE AND A AND B ARE FULLY, FULLY #3WR50E6DZ IN BOTH SIDES BRIEFINGS.
JUSTICE PATTERSON: THERE'S MORE THAN STANDING IN ISSUE HERE
BECAUSE GENERALLY WHEN THERE'S A CONSTITUTIONAL CHALLENGE TO A STATUTE IT'S
MADE BEFORE THE TRIAL COURT AND THE SAME ARGUMENT MAY BE MADE ON APPEAL,
GENERALLY WE DON'T HAVE SITUATIONS WHERE A PROVISION OF A STATUTE IS DECLARED
UNCONSTITUTIONAL WHEN AS APPEARS HERE NEITHER PARTY KNEW THAT WAS COMING.
ALISON GIFFORD: YES, YOUR HONOR AND I THINK IT WOULD HAVE BEEN PREFERABLE
IF THE APPELLATE DIVISION PERHAPS IT ASKED FOR SUPPLEMENTAL BRIEFING ON A AND B
BUT I THINK THE APPELLATE DIVISION DID PUT THOSE TWO SUBSECTIONS BEFORE THIS
COURT AND THEY'VE BEEN FULLY BRIEFED BY BOTH PARTIES IN OUR SUPREME COURT BRIEFING.
CHIEF JUSTICE RABNER: MR. ZUCKERMAN DOESN'T THINK SO.
ALISON GIFFORD: I APPRECIATE WHAT THE CHIEF JUSTICE SAID ABOUT THE
THOROUGHNESS OF OUR BRIEFING ON THIS ISSUE AND I THINK THAT -- I DON'T THINK THERE'S
ANYTHING TO ADD REGARDING THOSE TWO SUBSECTIONS AND THE TYPE OF MATERIAL
THEY COVER. I WOULD LIKE TO RETURN TO SUBSECTION C AND WHAT SUBSECTION C COVERS
BECAUSE THAT WAS UNDOUBTEDLY BEFORE THE TRIAL, APPELLATE COURT AND THIS
COURT TODAY. JUST LOOKING AT THE PLAIN LANGUAGE OF THE STATUTE, TO OTHER WISE
SDPIKT A CHILD FOR THE PURPOSE OF SEXUAL GRASS FIX OF ANY PERSON TO VIEW THE
DEPICTION WHERE THE SDPIKS DOES NOT HAVE VALUE. THAT ANY PERSON LANGUAGE BY ITS
LANGUAGE HAS A SUBJECTIVE STANDARD, ANY PERSON COULD BE A PERSON TAKING THE PHOTO,
SHARING THE PHOTO, THERE HAVE BEEN NUMEROUS COURTS RECENTLY THAT HAVE
INTERPRETED THAT ANY PURPOSE LANGUAGE AS BEING A SUBJECTIVE STANDARD, THAT'S STATE VS.
JORDAN IN UTAH, STATE VS. MEYERS IN NEW MEXICO, THE FEDERAL CASE, STATE VS.
B O A M, THESE CASE HAVE HELD IN THE CHILD PORNOGRAPHY CONTEXT WHEN A PERSON TAKES
A PHOTOGRAPH OF A CHILD FOR THE PURPOSE OF THIS OWN AROUSAL THAT FALLS UPDATER
THE PURPOSE LANGUAGE, SO HERE -- JUSTICE PATTERSON: I'M SORRY,
CAN YOU BACK UP ON THAT? THE CASES THAT YOU JUST CITED TO US, WHAT WAS
THE CONTEXT OF THE TERMINOLOGY ANY PERSON? ALISON GIFFORD: YES,
IN STATE VS. JORDAN, THAT UTAH LAW IS ALMOST IDENTICAL OR IS IDENTICAL TO THE
NEW JERSEY LAW WHICH IS NUDE TEA IF DEPICTED FOR THE PURPOSE OF SEXUAL
STIMULATION OR GRATIFICATION OF ANY PERSON, IT'S THE SAME LANGUAGE AS THE CHILD EROTICA
AMENDMENT BUT SPECIFIES THAT IT'S NUDE TEA IN PARTICULAR. AND THEN IN TERSZ
MEYERS THAT LANGUAGE IS -- JUSTICE PATTERSON: THAT ISN'T
THE SAME LANGUAGE, RESPECTFULLY, THIS LANGUAGE IS, AND I'M NOT SUGGESTING
EITHER THIS LANGUAGE OR THAT IS MORE PRECISE, BUT IT'S THE GRASS FIX OF ANY PERSON
-- STIMULATION OR GRATIFICATION OF ANY PERSON WHO MAY VIEW THE DEPICTION
WHERE THE DEPICTION DOES NOT HAVE SERIOUS LITERARY, ET CETERA.
ALISON GIFFORD: IT'S THE SAME LANGUAGE WITHOUT THE LITERARY EXCEPTION, AND IT'S
TALKING ABOUT NUDE TEA, SO IT'S DIFFERENT FROM SUBSECTION C IN MANY RESPECTS
BUT THE TAKE AWAY IS FOR THE PURPOSE OF AROUSING ANY PERSON, THAT ANY PERSON INCLUDES
THE SUBJECTIVE PURPOSE OF THE PERSON WHO'S TAKING THE PICTURE.
JUSTICE PATTERSON: SO WHAT WOULD BE THE LANGUAGE THAT WOULD MEET -- THAT WOULD
NOT BE OVER BROOD BUT WOULD ADDRESS THE PROBLEM THAT YOUR COLLEAGUES ON THIS
SIDE OF THE ROOM HAVE TALKED ABOUT WHICH IS THAT YOU MAY HAVE AN IMAGE THAT FOR
85 OR 99 OR 99 AND A HALF PERCENT OF THE POPULATION IS NOT GOING TO BE IN ANY WAY
SEXUALLY STIMULATING OR GRATIFYING, BUT FOR CERTAIN PERSONS IT MAY BE?
WALTZ THE LANGUAGE THAT WOULD CAPTURE THAT WITHOUT BEING OVER BROAD?
ALISON GIFFORD: SO THE ONLY WAY THAT THIS STATUTE CANNOT BE OVER BROAD IS IF
IT INCORPORATED THE MILLER STANDARD FOR OBSCENITY OR THE DEFINITION OF CHILD
PORNOGRAPHY UNDER FERBER, THOSE ARE THE TWO EXCEPTIONS TO THE DPA FIRST AMENDMENT
THAT THE UFRMS S SUPREME COURT HAS CLEARLY LAID OUT FOR HOW TO -- THAT THE
STATUTE BECOMES UNCONSTITUTIONALLY OVER BROAD. THE PROBLEM HERE IS THAT NEITHER
OF THOSE STANDARDS CAN BE READ INTO THIS STATUTE BECAUSE IT'S NOT WHAT THE
LEGISLATURE INTENDED. THE LEGISLATURE HERE EXPLICITLY INTENDED TO GO BEYOND CHILD
PORNOGRAPHY TO EXTENDS THE DEFINITION BEYOND PROHIBITED SEXUAL ACTS, NARROWLY
DEFINED PROHIBITED SEXUAL ACTS, WHICH IS HOW FERBER DEFINES CHILD PORNOGRAPHY,
TO INCLUDE CHILD EROTICA, THE ACTUAL WORD CHILD EROTICA IS USED IN THE STATEMENT
ACCOMPANYING THE BILL AND IT'S MERNTS TO COVER INAPPROPRIATELY SEXUALIZED
CHILDREN, NOW IF WE LOOK AT SUBSECTION C, THIS DOESN'T EVEN REQUIRE THAT THE CHILD
BE NUDE OR PARTIALLY CLOTHED IN ANY WAY, THIS PLAIN LANGUAGE WOULD APPLY
TO A FULLY CLOTHED DEPICTION OF A CHILD. SO EVEN IF THERE IS SOME SORT OF OBJECTIVE
STANDARD THAT'S READ INTO SUBSECTION C, IT'S STILL UNCONSTITUTIONALLY OVER
BROAD BECAUSE IT COVERS ANY DEPICTION OF TEENAGE SEXUAL ASSAULT SEXUAL TEA,
INCLUDING SOMEONE WHO TAKES A PHOTO OF THEMSELVES, IT COULD BE A FULLY CLOTHED TEENAGER
WHO IS MAKING A KISSING FACE OR ANOTHER SEXUALLY SUGGESTIVE FACE OR POSE,
IT COULD BE TEENAGERS WHO ARE DRESSED UP FOR A SCHOOL DANCE OR HALLOWEEN --
JUSTICE NORIEGA: DO YOU HAVE ANY EVIDENCE OF ANY SUCH PICTURE LIKE THAT
THAT WOULD OTHERWISE BE INNOCUOUS THAT ARE BEING TARGETED AT THIS MOMENT.
ALISON GIFFORD: I DON'T HAVE THE DETAILS OF WHAT'S BEING TARGETED IN THOSE
50 PROSECUTIONS BUT I DO THINK IF WE LOOK AT THE PLAIN RANK ITCH OF THE LAW, AND
SEXUALLY SUGGESTIVE, INAPPROPRIATELY SEXUALIZED, I THINK THERE COULD BE
ADDING ON TOP, VIDEOS OF TEENAGERS DANCING, A PICTURE OF A TEENAGER THAT SOMEONE
TAKES FOR THEMSELVES OR FOR A SIGNIFICANT OTHER OR POSTS ON SOCIAL MEDIA,
THIS WOULD UNDOUBTEDLY MEET BOTH THE PLAIN LANGUAGE OF THE LAW AND A LINE WITH
WHAT TYPE OF IMAGES THAT APPEARS WERE MEANT TO BE COVERED BY THIS CHILD
EROTICA AMENDMENT BUT THEY WOULDN'T BE -- BUT IT WOULD BE PROTECTED SPEECH, THERE
WOULDN'T BE CHILD PORNOGRAPHY, THERE WOULDN'T BE OB CINDER, THERE WOULDN'T
BE INTRINSICLY RELATED TO THE SEXUAL ABUSE OF A CHILD WHICH IS WHAT'S REQUIRED FOR
CHILD PORNOGRAPHY AND IT'S KINDS OF IN THE UNDERLYING RATIONALE IN THE CHILD
PORNOGRAPHY DECISIONS BAIT DATING BACK TO FERBER AND IT DOESN'T JUST APPLY TO TEENS
WHO ARE TAKING PHOTOS OF THEMSELVES AND SHARING THEM, IT COULD BE, WOULD THEN BE
GUILTY OF POSSESSING CHILD PORNOGRAPHY, SO JUST LOOKING AT THE PLAIN LANGUAGE
HERE IT'S VERY CLEAR THAT WE'RE DEALING WITH A WE'RE DEALING WITH AN OVER BROAD
STATUTE. JUSTICE PATTERSON: WE'RE HEARD FROM THE PROSECUTION
THAT WITHOUT THE OVERLAY OF TEXT IN THIS CASE OR THE PHOTOGRAPH OF THE DEFENDANT
HIMSELF, THIS WOULD NOT BE -- THIS CASE WOULD NOT HAVE BEEN PROSECUTED.
WHAT IS YOUR POSITION WITH RESPECT TO THE IMPACT IF ANY OF SUPERIMPOSED TEXT OR
TEXT THAT ACCOMPANIES WHAT OTHER WISE MIGHT BE AN INNOCUOUS IMAGE.
ALISON GIFFORD: IF A DEFENDANT IS TO TAKE OBSCENE TEXT AND PUT IT OVER AN INNOCENT
IMAGE AND DISTRIBUTE THAT, THAT WOULD BE DISTRIBUTION OF OBSCENITY, THAT'S
NOT PROTECTED SPEECH, THAT COULD BE PROSECUTED UNDER NEW JERSEY'S OB CENTER
EXCEPTION. JUST THE POSSESSION OF THAT IMAGE WITH OBSCENE TEXT WRITTEN ON
TOP, THAT IS PROTECTED SPEECH UNDER SUBSTANTIAL VERSUS GEORGIA. POSSESSION OF
OBSCENITY IS PROTECTED, IT DIFFERS FROM CHILD PORNOGRAPHY, SO IF SOMEONE IS
SUBJECT, WE MAY NOT DEEM THAT MOORL OR VAL AUTOMOBILE SPEECH --
JUSTICE PATTERSON: HERE WE HAVE AN ALLEGATION OF DISTRIBUTION.
ALISON GIFFORD: DISTRIBUTION, IF THE TEXT IS OBSCENE THEN WOULD FALL UNDER NEW
JERSEY'S OBSCENITY STATUTE SO THE DEFENDANT HERE IS NOT DENYING THAT HE COULD
BE PROSECUTED UNDER NEW JERSEY'S OBSCENITY STATUTE BUT HE CAN'T BE INDICTED UNDER
AN UNCONSTITUTIONALLY OVER BROAD LAW, WHICH IS WHAT WE HAVE HERE.
JUSTICE WAINER APTER: I'M SORRY, I KNOW THAT I HAD ASKED THIS TO YOUR COLLEAGUE
ON THE OTHER SIDE AND HE SAID HE WOULD LET YOU SPEAK FOR YOURSELF, BUT YOUR
POINT THERE IS THAT YOU COULD NOT BE PROSECUTED UNDER SUBSECTION C, YOUR CLIENT,
I'M SORRY, COULD NOT BE PROSECUTED UNDER SUBSECTION C NO MATTER WHAT BECAUSE THE
OBSCENITY LAW IS A TOTALLY SEPARATE STATUTE THAT REQUIRES A TOTALLY
SEPARATE INDICTMENT AND IS NOT THIS CASE. ALISON GIFFORD:
YES, YOUR HONOR AND THIS DOES JOG MY MEMORY OF SOMETHING I WANTED TO RAISE AS
WELL, NONE OF THE EXAMPLES THAT THE STAY CITES TO SUCH AS A PERSON TAKING
A PICTURE OF HIS GENITALS WITH A SLEEPING CHILD IN THE PERSON, THAT WOULD FALL
UNDER CHILD PORNOGRAPHY LAWS, THE LEWDNESS STATUTE, THAT IS NOT THE TYPE
OF CONTENT THAT THIS STATUTE WAS MEANT TO COVER. THIS WAS MEANT TO COVER SEXUALLY
SUGGESTIVE PHOTOS OF CHILDREN THAT DON'T MEET THE EXISTING DEFINITION OF
KRP, WHICH IS THE DEFINITION OF KRP THAT HAS BEEN APPROVED BY FERBER AND, MEETS
THE STANDARDS OF KRP. CHILD PORNOGRAPHY. ALISON GIFFORD:
IF THIS COURT HAS NO QUESTIONS ABOUT SUBSECTION C, I WOULD LIKE TO BRIEFLY
TOUCH UPON SUBSECTIONS A AND B. THE LANGUAGE HERE AS THE CHIEF JUSTICE WAS POINTING
OUT EMIT SENSE U AT, THAT DOESN'T ADMIT ANY STANDARD WHEN A PHOTO CROSSES A LINE
AND BECOMES SENSE SUES ENOUGH THAT IT CONS STRUTS PURIENT INTEREST ON A
CHILD, UNLIKE CHP LAWS, HERE SUBSECTIONS A AND B TALK ABOUT A MUCH MORE BROADLY
DEFINED SEXUAL PARTS, INCLUDING THE INNER THIGH, AND PURIENT -- CONCENTRATE
PURIENT INTEREST ON THE CHILD, AND SO SOME EXAMPLES THAT I GAVE IN MY BRIEF OF
DEPICTIONS THAT WOULD FALL UNDER A AND B WOULD BE A TEENAGER POSING VERY
SUGGEST TIFL IN A BATHING SUIT, THAT WOULD REVEAL THE TEENAGER'S INNER THIGH, IT
COULD BE A FRIEND TOUCHING ANOTHER FRIEND ON HER CLOTHED HE BEHIND, THESE
ARE 2 EXAMPLES BUT THEY SHOW HOW THIS DEFINITION EXTENDS TO THE SAME TYPES OF XIKSS
OF TEENAGER SEXUAL ASSAULT THAT ARE COVERED BY SUBSECTION C AND RENDER IT
PROBLEMATIC BECAUSE IT EXTENDS BEYOND CHILD PORNOGRAPHY OR OBSCENITY.
JUSTICE PATTERSON: THE ISSUE THAT WE HAVE HERE WHICH ARE TALKING HYPOTHETICALLY
ABOUT THE IMAGES THAT MIGHT FALL UNDER A AND B, WHEN YOUR CLIENT WAS PROSECUTED
ONLY UNDER C. ALISON GIFFORD: YES BUT IN THE OVER BREATH
CONTEXT EVEN IF THE DEFENDANT'S CONDUCT COULD BE PROHIBITED UNDER A DIFFERENT LAW,
THE STANDING IN OVER BREATH CONTEXT ALLOWS THAT DEFENDANT TO CHALLENGE THE REACH
OF THE STATUTE AS IT WOULD HYPOTHETICALLY APPLY TO OTHER PEOPLE.
JUSTICE PATTERSON: BUT THERE WAS NO SUCH CHALLENGE HERE. ALISON
GIFFORD: TO SUB SECTIONS A AND B AND OBVIOUSLY IT'S UP TO THIS COURT TO DECIDE
WHETHER IT WANTS TO REACH A AND B AND I WOULD JUST REITERATE THAT BECAUSE
THERE ARE MANY OF THE SAME PROBLEMS AS SUBSECTION C, WITHOUT ADDRESSING SUBSECTION
C I BELIEVE THIS COURT WOULD LEAVE THE CHILD EROTICA BEING AMENDMENT IN
PLACE THAT IS STILL SUBSTANTIALLY OVER BROAD AND I THINK THE COURT HAS THE FULL
EVERYTHING THAT IT WOULD NEED IN TERMS OF BRIEFING IN THE APPELLATE DIVISION
DECISION BELOW TO REACH THE CONSTITUTIONALITY OF SUBSECTION A AND B IF IT SO WISHES.
JUSTICE NORIEGA: JUST TO GET BACK TO YOUR POINT ON C FOR THE
MOMENT, DOESN'T THE LANGUAGE AND IN THIS PARTICULAR CASE THE COMMUNICATION BETWEEN
THE DEFENDANT AND OTHER PARTIES REALLY GO TO THAT PURPOSE OF THE SEXUAL
STIMULATION OR GRATIFICATION THAT THE LANGUAGE IS MEANT TO HIGH LIE THAT PURPOSE
AND ISN'T THAT WHAT CONVERTS THIS IMAGE AND IS PRETTY CLEAR IN TERMS OF
WHAT THE STATUTE REQUIRES THAT HERE WHAT WAVY IS A DEPICTION OF A CHILD AND THE
PURPOSE OF THE LANGUAGE CONVERTS IT INTO WHAT SUBSECTION C IS MEANT TO
PREVENTER? ALISON GIFFORD: THE ISSUE IS THAT EVEN IF THIS
DEFENDANT'S CONDUCT COULD BE INDICTED, PROSECUTED UNDER SUBSECTION C, THERE ARE
SOME STATUTES THAT THOUGH THEY COVER SOME AURN PROTECTED SPEECH, SUCH AS WHAT I'M
CONCEDING IS OBSCENITY HERE, THEY JUST REACH TOO FAR INTO ALSO PROTECTED
SPEECH. SO EVEN IF THE DEFENDANT HERE COULD BE -- AND MY ARGUMENT IN THE APPELLATE
DIVISION AND I WOULD RELY ON MY APPELLATE DIVISION BRIEF HERE, IS THAT ACTUALLY
THIS STATUTE WASN'T EVEN INTENDED TO APPLY TO WORDS PLACED OVER INNOCENT IMAGES
BECAUSE THE WORDING OF THE STATUTE IS ABOUT DEPICTIONS AS OPPOSED TO THE
OBSCENITY STATEMENT WHICH USES WORDS LIKE NARRATION AND DESCRIPTION TO TALK ABOUT
THE THINGS THAT ARE PROHIBITED, BUT EVEN IF THIS TYPE OF CONDUCT WOULD FALL
UNDER THE STATUTE IT DOESN'T CHANGE THE FACT THAT THE PLAIN LANGUAGE ALSO APPLIES
FAR BEYOND OBSCENITY AND CHILD PORNOGRAPHY TO REACH PROTECTED SPEECH AND THAT'S
THE PROBLEM IN AN OVER BROAD ANALYSIS. JUSTICE WAINER APTER:
BUT THE U. S. PRESENTENCE REPORT IN THE HAN SON DECISION TALKED ABOUT THEABLE
ASSIST AND TALKED ABOUT THE REASON WHY I COULD BE PROSECUTED AND ALL OF THESE OTHER
PEOPLE COULD NOT AND HERE ARE THE HYPE THEKS CAMS AND THEY SPECIFICALLY
MENTIONED THAT IT HAS TO BE #0E6R8 BROAD SO THAT THERE WOULD HAVE BEEN TO BE MORE
CONSTITUTIONAL PROSECUTIONS AS OPPOSED TO UNCUSHION PROSECUTIONS, HERE ARE THERE
ANY PROSECUTIONS THAT YOU CAN KEFRNLT R CONTEND HAVE BEEN UNCONSTITUTIONAL
UNDER SUBSECTION C, ANY OF THE KINDS THAT YOU'RE TALKING ABOUT OR IS IT ONLY
HYPOTHETICALS. ALISON GIFFORD: I DON'T HAVE THE DETAILS OF
THOSE 50 PROSECUTIONS THAT -- WE KNOW THERE ARE ONLY 50 PROSECUTIONS UNDER THE CHILD
EROTICA AMENDMENT CURRENTLY SO I DON'T HAVE THE DETAILS. JUSTICE
WAINER APTER: I THINK THERE'S 50 PENDING, RIGHT? ALISON GIFFORD:
SORRY, THERE ARE 50 PENDING PROSECUTIONS, THEY'RE ALL ON PAUSE NOW.
JUSTICE WAINER APTER: BUT THERE COULD HAVE BEEN ONE FROM 4 YEARS AGO, RIGHT?
OR TWO YEARS AGO, LAST YEAR, THEY'VE ONLY BEEN ON PAUSE FOR NOT THAT LONG.
ALISON GIFFORD: AND I HAVEN'T DEALT WITH ANY OF THESE CASES PERSONALLY
SO I DON'T KNOW WHAT THE SPECIFIC FACTUAL UNDERPINNINGS ARE BUT I WOULD POINT
YOUR HONOR ALSO TO STATE VS. STEVENS WHICH IS A SOMEWHAT RECENT OVER BREATH
CASE AND THERE THE COURT WAS LOOKING AT A STATUTE THAT WAS INTENDED TO PROHIBIT
DEPICTIONS OF ANIMAL CRUELTY AND THE DEFENDANT IN THAT CASE WAS CHARGED
WITH -- WAS INDICTED FOR DOG FIGHTING, BUT THE ISSUE THERE WAS THAT THE STATUTE
THE WAY IT WAS WRITTEN WAS SO BROAD THAT STWO COVER NOT JUST CRUEL DEPICTIONS
OF ANIMALS BUT ANY DEPICTION IN WHICH AN ANIMAL WAS KILLED, SO THE COURT
THERE REALLY DID GO ON TO DISCUSS HYPOTHETICAL SITUATIONS THAT WOULD FALL UNDER
THE STATUTE, SUCH AS HUNTING VIDEOS, AND USED COMMON SENSE TO CONCLUDE THAT,
YOU KNOW, THE MARKET FOR HUNTER GO VIDEOS IS GOING TO BE FAR GREATER THAN THE MARKET
FOR DEPICTIONS OF ANIMAL CRUELTY. SO THERE WITHOUT ADDRESSING WHETHER
ANIMAL CRUELTY OR DOG FIGHTING COULD BE PROEBLTED UNDER A MORE NARROWLY DEFINED
STATUTE THE COURT REALLY LOOKED AT THE HYPOTHETICAL EXAMPLE SUCH AS HUNTING
VIDEOS THAT MADE THE STATUTE CONSTITUTIONALLY OVER BROAD. I THINK THAT'S THE KIND
OF ANALYSIS I'M ASKING THE COURT TO DO HERE, IT'S JUST THAT THE STATUTE AS
WRITTEN REACHES SEXUALLY SUGGESTIVE DEPICTIONS OF THOSE UNDER 18 AND THERE'S A
MUCH BIGGER MARKET FOR THESE SEXUALLY SUGGESTIVE BUT PROTECTED DEPICTIONS THAN
THERE IS FOR THE TYPE OF EXPLICIT DEPICTIONS THAT MEET THE DEFINITION OF
CHILD PORNOGRAPHY. IF YOUR HONORS DON'T HAVE ANY FURTHER
QUESTIONS I'D JUST LIKE TO SUM UP BY REITERATING AGAIN THAT THE U. S. SUPREME COURT
HAS SET OUT TWO CLEAR EXCEPTIONS TO THE FIRST AMENDMENT THAT ARE RELEVANT TO
THIS CASE AND THAT IS OBSCENITY AND CHILD PORNOGRAPHY AS WRITTEN THIS AMENDMENT
IS FAR BEYOND THAT AND COVERS AN AMOUNT OF PROTECTED SPEECH AND THE DEFENDANT ASKS
THAT YOU IT BE UNCONSTITUTIONAL AND DISMISS THE INDICTMENT AGAINST HIM.
THE COURT: THANK YOU. MR. SHALOM. ALEXANDER
SHALOM: MAY IT PLEASE THE COURT. I WAS PLEASED TO HEAR THE COURT STARTING WITH
A REALLY GRAMMARIANS EYE TO THE STATUTE BECAUSE THERE IS A TONE IN AT LEAST
THE COUNTY PROSECUTOR'S BRIEF THAT SUGGESTS THAT COURTS THAT FIND EVERYONE BREATH
OR FIND VAGUENESS ARE SOMEHOW ENDORSING THE BEHAVIOR OF MR. HIGGINBOTHAM, BUT
AS ALL A MEEK KEY ALL PARTIES AND WHAT THE APPELLATE DIVISION ACKNOWLEDGES WHAT
HE DID IS DEPLORABLE, WHAT HE DID IS BOTH WORTHY OF OUR MORAL, AND PROSECUTION,
THE QUESTION IS NOT WHETHER WHAT HE DID VIAL, THE QUESTION IS WHETHER THE
STATUTE AS WRITTEN IS CONSTITUTIONAL, AND IT IS NOT, AND WE HAVE TWO DIFFERENT
ATTEMPTS FROM THE PROSECUTOR AND THE ATTORNEY GENERAL TO SAVE IT. THE
PROSECUTORS ESSENTIALLY SAY LOOK AT THESE FAR FLUNG EXAMPLES, WE WOULD NEVER DO
THAT, TRUST THAT, WE WON'T ENGAGE IN THOSE PROSECUTIONS. BUT STEVENS FLATLY RE
JKTED THAT DEFENSE. I MEAN THAT WAS RAISED IN STEVENS, WE WON'T PROSECUTE
THE HUNTING VIDEOS EQUIPMENT. JUSTICE WAINER APTER: BUT WHAT ABOUT
THE MORE RECENT DECISION THAT SESSION YOU CAN'T TALK ABOUT HYPOTHETICALS,
YOU HAVE TO LOOK AT THE RECORD OF PROSECUTIONS. 2NDDFNS:
I THINK IT'S FAIR TO SAY JAPTD THAT THE SUPREME COURT, THAT I DON'T THINK THEY
SHOULD, BUT LET'S TALK ABOUT WHAT'S WRONG WITH THAT FORM OF ANALYSIS, IS
IT MEANS THAT WHEN THE STATUTE IS PASSED, YOU CAN'T BRING AN OVER BREATH CHALLENGE,
LEAVING LOTS OF TIME WHERE THERE'S LOTS OF INNOCUOUS SPEECH THAT IS PROSCRIBED
OR WHAT IT MEANS IS IF YOU HAVE PROSECUTORS BASING WELL FOR A PERIOD OF TIME, YOU HAVE
TO LEAVE AN OTHERWISE OVER BROAD STATUTE ON THE BOOKS UNTIL A NEW PROSECUTOR
COMES IN TO PLACE, AND GIVEN THE STAKES INVOLVED HERE FOR ANYONE WHO IS PROSECUTED
UNDER THESE STATUTES OR EVEN INVESTIGATED UNDER THESE STATUTES, THAT IS
SUBSTANTIALLY CHILLING OF SPEECH. AND I'LL GET TO THE WAY IN WHICH THE OVER BREATH
WILL CHILL. JUSTICE PIERRE-LOUIS: AND THIS IS A FAIRLY
NEW STATUTE AND EVEN AS COUNSEL FOR C.P.A. N.J. NOTED I THINK IN RESPONSE TO ONE OF
JUT TIS JUSTICE PATTERSON'S QUESTIONS, SHE HAS NOT SEEN ONE OF THESE CASES WITH
WRITING SUPERIMPOSED, SO TO YOUR POINT IF SOMEONE WERE TO BRING A CHALLENGE
EVEN THE FIRST TIME ONE OF THESE CASES HAPPENS, WE WOULDN'T BE ABLE TO CONDUCT
THIS OVER BREATH ANALYSIS. 2NDDFNS: THAT'S RIGHT, I THINK
THAT'S EXACTLY RIGHT. JUSTICE WAINER APTER: BUT YOU WOULD
ALSO BE AKT CONDUCT AN OBSERVE BREATH AS APPLIED, YOU WOULDN'T BE ABLE TO
CONDUCT THE OVER BREATH ON A FACIAL BASIS. 2NDDFNS: THAT'S RIGHT,
SO THE QUESTION IS ARE YOU CHILLING OTHER PEOPLE'S SPEECH, AND I'LL GET TO THAT
IN A SECONDER, I JUST WANT TO TALK ABOUT THE ATTORNEY GENERAL'S DEFENSE WHICH IS
ESSENTIALLY TO ASK YOU TO READ THE STATUTE AS THEY WANT IT TO BE RATHER THAN
AS IT IS, AND SO TO IMPORT INTO SUBSECTION C THINGS LIKE THE PURIENT INTEREST
REQUIREMENT WHICH WOULD NARROW THE SCOPE, MAYBE NOT SUFFICIENTLY BUT WOULD NARROW
THE SCOPE. BUT IT'S NOT IN THE STATUTE AND I THINK -- I THINK IT'S QUITE
CLEARLY NOT THERE AND THE CONSTRUCTION PROPOSED BY THE DEFENDANT IS THE OBVIOUS
ONE AND THE INQUIRY STOPS THERE, BUT IF THE COURT WERE TO GET SAY THAT THE
PLAIN TEXT WAS AMBIGUOUS AS TO WHETHER WHAT OTHER WISE MEANT, THEN YOU GET TO THE
LEGISLATIVE HISTORY AND I JUST HAVEN'T HEARD ANY RECKONING WITH THE TESTIMONY
BY THE ATTORNEY GENERAL BEFORE THE LEGISLATURE ABOUT WHY -- WHAT HAD BEEN SUBSECTION
A GOT DISAGGREGATED INTO A AND B WHICH WAS TO MAKE SURE THAT THE PURIENT
INTEREST APPLIED TO BOTH NUDE TEA AND TO CONTACT, BUT DIDN'T SAY ANYTHING ABOUT
C. THAT'S A GLARING OMISSION. AND I THINK IMPORTANT EVIDENCE.
BUT LET ME TAKE -- AND LET ME JUST SAY ONE OTHER THING WHICH I THINK MISS GIFFORD
AN ALLUDED TO WHICH IS COUNSEL FOR THE ATTORNEY GENERAL TALKED ABOUT THE
THINGS KIND OF THAT WOULD SLIP THROUGH THE CRACKS OTHERWISE, SOMEONE POSING A ADULT'S
INTIMATE PARTS WITH THE PICTURE OF A SLEEPING CHILD, THOSE THINGS ARE NOT
JUST MORALLY REPREHENSIBLE BUT ALSO PUNISHABLE UNDER EXISTING LAW, EXISTING LAW
OR COULD BE DEFINED IN LAW, SO YOU COULD HAVE A STATUTE THAT SAID IF YOU HAVE A
N ADULT'S INTI MIDST PARTS WITH A CHILD, THAT DEFINES WHAT IT IS.
JUSTICE WAINER APTER: I JUST WANT TO MAKE SURE I UNDERSTAND, YOU'RE TALKING
ABOUT ONLY THE SMALL SUBSECTION C BECAUSE WHEN YOU REFERRED TO THE A AND B
BEFORE THERE'S THAT ODD A AND B SO WHEN WE'RE TALKING ABOUT THE A B AND C, ONLY
C. 2NDDFNS: I'M TALKING ABOUT SMAM A, SMALL B AND I'M FOCUSING
MY ARGUMENT ON FALL C, BUT JUST TO CHARACTERIZE WHAT I'M TALKING ABOUT, AGAIN
WE'RE TALKING ABOUT THE SMALL LETTERS, BUT IT HAD BEEN JUST A AND B AND THEN
IT BECAME A B AND C WITH A BEING BROKEN INTO A AND B. JUSTICE
WAINER APTER: OKAY. GOT IT. 2NDDFNS: OKAY. WHEN THE -- THEY RESPONDED
THAT IT WAS A CASE BY CASE BASIS, THEIR BRIEF CITES TO WE KNOW OBSCENITY
WHEN WE SEE IT, BUT THAT IS AGAIN JUST SAYING TRUST PROSECUTORS, AND I THINK IT'S
TRUE, THEY CAN GIVE A HUNDRED VIAL EXAMPLES OF CASES THAT CLEARLY WE
WOULD ALL THINK SHOULD FALL INTO THAT WHICH THE LEGISLATURE FORBIDS, BUT THE PROBLEM
IS THE LANGUAGE OF SMALL C ALSO INVOLVES THINGS LIKE A 17 YEAR OLD TAKING A
CLOTHED BUT SEXUALLY SUGGESTIVE PICTURE OF THEMSELVES FOR ANOTHER 17 YEAR OLD.
SO THAT'S NOT ONLY NOT WHAT WE THINK OF AS LEGALLY PROSCRIBEABLE BUT MORALLY
PROSCRIBEABLE, BUT IF YOU READ THE LANGUAGE, IT'S CLEAR IN SUBSECTION C IT CLEARLY
WOULD APPLY TO THE OBSCENE LANGUAGE, BUT IT BY ITS PLAIN LANGUAGE WOULD APPLY TO
A 17 YEAR OLD TAKING AN INNOCENT THOUGH MAYBE SUL TREE PICTURE OF THEMSELVES
AND SAYING TO A FRIEND I TOOK THIS PICTURE SO YOU WOULD THINK I WAS SEXY, THAT
SATISFIES THE STATUTE, AND WE CAN'T JUST SEED TO PROSECUTORS AND POLICE
OFFICERS THAT THEY'LL ENFORCE IT IN THE RIGHT WAY, AND OUR BRIEF TALKS ABOUT THE
HISTORY IN THIS COUNTRY IN SEXUAL PROSECUTIONS OF MINORITY SEXUAL TEASE,
THE L G B T Q- COMMUNITY BEING OVERALL PROSECUTED BECAUSE OF PERCEPTIONS OF THAT
XHUBT BEING OVERALL SKEKS LIEFD, SO THERE'S A REAL RISK THAT IT IS USED NATURAL
DISCRIMINATORY WAY. UNLESS THE COURT HAS ANY QUESTIONS. CHIEF
JUSTICE RABNER: THANK YOU COUNSEL, WE'LL HEAR FROM CJ GRIFFIN NEXT.
CJ GRIFFIN: GOOD MORNING, MAY IT LEASE THE COURT, IN THE INTEREST OF BREVITY
I WILL ADOPT THE TWO PRIOR ARGUMENTS BEFORE ME, I THINK THAT MOST OF MY
COMMENTS HAVE BEEN ADDRESSED ALREADY AND WE WILL RELY UPON OUR BRIEF AND I GUESS,
YOU KNOW, I AM HEAR AS AN ATTORNEY FOR THE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
BUT I'M ALSO THINKING AND THE THING THAT THIS CASE MADE ME THINK ABOUT IS
BEING A PARENT AND I KNOW MANY OF YOU ON THE COURT ARE PARENTS AND SOME PARENTS
OF SMALL CHILDREN AND WHEN OUR CHILDREN ARE SMALL WE WORRY ABOUT THEY MIGHT
FACE SEXUAL ABUSE OR THEY MIGHT BE TAKEN ADVANTAGE OF BY SOMEONE WHO SEXUAL LYSIS
CHILDREN SO THAT IS OUR CONCERN BUT AS THEY GROW OLDER OUR CONCERNS CHANGE
AND WE NEVER STOP WORRYING ABOUT THEM, SFOE I NOW HAVE A YOUNG TEENAGER AND IT IS
AN EXPERIENCE TO SEE YOUR CHILD GROW AND TO BECOME MORE INDEPENDENT AND ONE OF
THE INTERESTING THINGS IS THEY START BECOMING TALLER THAN YOU AND THEY START WANTING
TO LOOK COOL FOR THEIR FRIENDS AND THEN EVENTUALLY THEY WANT TO START BECOMING
SEXUALLY ATTRACTIVE TO BOYS OR GIRLS IN SCHOOL AND IN THIS DAYS OF SOCIAL
MEDIA, THEY MS TAKE PICTURES OF EACH OTHER, THERE ARE ALL SORTS OF MEEMS ON THE
SOCIAL MEDIA WHERE THEY ARE TRYING TO LOOK ATTRACTIVE TO THEIR PIERS, THAT IS
A PRIMARY FOCUS OF THEIR LIFE, DATING. SO MY CONCERN IS I THINK THE STATE'S RESPONSE
IN THE BRIEF WAS THAT WELL, THE CHILD PORNOGRAPHY PREVIOUSLY ALREADY SWO
SUBJECT A TEENAGER TO THE CHILD PORNOGRAPHY LAW, AND THAT'S TRUE, BUT AS PARENTS
WE CAN TELL OUR PARENTS UNDER THE OLD LAW, WE CAN ADVISE THEM DON'T SEND NUDE
PICTURES OF YOURSELVES, DORNLTS SEND PICTURES OF YOURSELVES OR SHARE
PICTURES OF OTHERS THAT ARE ENGAGED IN PROHIBITED SEXUAL ACTS. BUT WHEN YOU GET
TO A VAGUE, VAGUE STATUTE THAT'S AS VAGUE AS THE CHILD EROTICA AMENDMENTS,
ALL PARTS OF IT, IT BECOMES MORE DIFFICULT TO ADVISE OUR CHILDREN WHAT IS SEXUALLY
SUGGESTIVE, WHAT IS FOR THE PURPOSE OF SEXUAL STIMULATION OR GRATIFICATION
FOR OTHER TEENAGERS AND YOUR PIERS, IT BECOMES MORE DIFFICULT AND THAT'S THE PROBLEM
WITH A LAW LIKE THIS. AND THEN IT BECOMES EVEN MORE DIFFICULT WHEN THE
COURT -- WHEN THE STATE IS ASKING THE COURT TO JUMP THROUGH MENTAL GYMNASTICS TO
TRY TO CONSTRUE THE STATUTE IN A WAY THAT'S JUST NOT ON THE PLAIN LANGUAGE, SO
HOW WOULD ANY PARENT KNOW AND HOW OLD ANY TEENAGER NO WHAT IS PROHIBITED.
AND I'LL FINALLY JUST CONCLUDE BY SAYING MAYBE A AND B WEREN'T ARGUED BY THE
DEFENDANT, BUT I THINK JUSTICE PATTERSON YOUR COMMENT EARLY ON WAS DIRECTLY
ON POINT, THE STATE BROUGHT A AND B BEFORE THE APPELLATE DIVISION BECAUSE THEIR
ARGUMENT IS THAT SECTION C IS VALID ONLY BECAUSE OF LANGUAGE IN A AND B, AND
SO WE WOULD ASK THE COURT TO ADDRESS A AND B SIMPLY BECAUSE THERE ARE PENDING
PROSECUTIONS, BUT SPEECH WILL BE CHILLED IF THE COURT LEAVES A AND B IN PLACE.
THANK YOU. CHIEF JUSTICE RABNER: THANK YOU, COUNSEL.
I WOULD ADD ONE THING TO YOUR OPENING COMMENT THAT MY GRANDMOTHER SAID IN HER 90'S
AND THAT IS THAT YOU NEVER STOP WORRYING ABOUT YOUR CHILDREN.
MR. ZUCKERMAN, REBUTTAL. MICHAEL L. ZUCKERMAN: THANK YOU, YOUR
HONORS. I JUST WANT TO START WITH THE CHIEF JUSTICE QUESTION ABOUT COUNT
8. I APOLOGIZE, I DON'T HAVE IT WITH ME, THIS IS A SEALED CASE, I DIDN'T BRING
AS MUCH AS I NORMALLY MAYBE WOULD HAVE. CHIEF JUSTICE RABNER: NO
APOLOGIES. MICHAEL L. ZUCKERMAN: I WILL JUST SAY THE TRIAL
COURT RECOGNIZED THIS WAS ABOUT C, THEY'VE RECOGNIZED THIS WAS ABOUT C IN THE APPELLATE
DIVISION BELOW AND I'M TOLD THAT OFTEN WHAT HAPPENS IN THESE INDICTMENTS
IN COUNTS THAT ARE ABOUT VOLUME IT DOESN'T ALWAYS SAY WHICH SUBSECTION, BUT IT'S
CLEAR WHICH IT IS BECAUSE YOU'RE SAYING IT'S 10,000 OR A THOUSAND --
THE COURT: YOU'RE REPRESENTING IT'S ABOUT C. MICHAEL L.
ZUCKERMAN: THE STATE HAS ALWAYS UNDERSTOOD THIS CASE TO BE ABOUT C AND ONLY ABOUT
C, AND IF THIS COURT WOULD LIKE TO REACH A AND B WE WOULD LIKE ADDITIONAL
BRIEFING TO ADDRESS THAT INCLUDING WITH WE THINK IT'S NOT IN THE CASE BUT IF IT IS,
WHY IT SHOULD BE UPHELD. MICHAEL L. ZUCKERMAN: I WANT TO SAY
A BIT ABOUT THE FACTS THAT WE'RE DEALING IN HYPOTHETICALS, I WANT TO GO
BACK TO WHAT WAS SAID ABOUT OVER BREATH, WE'RE HERE ON CONSTITUTIONAL AND
UNCONSTITUTIONAL, I THINK THIS COURT WOULD BE FIRST APPLYING FEDERAL LAW, AND
THAT INCLUDES HAN SON, SO HAN SON SAYS YOU NEED A RECORD OF PROSECUTIONS THAT ARE
DISPROPORTIONATELY SUBSTANTIAL IF YOU SEE AS A DEFENDANT HAS DONE SOMETHING THAT
YOU CONCEDE YOU CAN'T BE LEGALLY PROSCRIBED FROM DOING ARE TRYING TO GET THE STATUTE
NASHGD DOWN SORT OF FOR EVERYBODY ELSE AND TO ESCAPE LIABILITY YOURSELF ON
SOMEONE ELSE'S RIGHTS. JUSTICE WAINER APTER: I THOUGHT THAT
JUSTICE BARRETTE MENTIONED THAT IN CONTRAST TO UNBELIEVABLE HYPOTHETICALS OR WILDLY
IMPOSSIBLE HYPOTHETICALS OR SOMETHING LIKE THAT, I DON'T THINK IT WAS JUST
THAT YOU ALWAYS HAVE TO WAIT TO HAVE MANY UNCONSTITUTIONAL -- A RECORD OF MANY
UNCONSTITUTIONAL PROSECUTIONS BEFORE BRINGING A CHALLENGE. HAVE YOU READ
THE CASE MORE RECENTLY THAT YOU REMEMBER WHAT THEY WERE DISCUSSING.
MICHAEL L. ZUCKERMAN: I DON'T KNOW IF I READ IT MORE RECENTLY, I DO TAKE IT TO SAY
THAT THEY'VE IDENTIFIED NO ACTUAL IN THE PARADE OF HORRIBLES THE PARADE
OF HORRIBLES HAS NEVER HAPPENED AND IF IT DOES EVER HAPPEN THAT'S WHEN YOU GET
AN AS APPLIED CHALLENGE. I WOULD JUST NOTE THAT I TAKE ALL MY FRIENDS ON THE
OTHER SIDE'S POINT THAT THERE IS -- YOU COULD STRETCH TO READ THE STATUTE
IN A WAY THAT WOULD COVER SOMETHING THAT WE ALL WOULD AGREE IS INNOCUOUS, THAT'S
NOT THE WAY THIS COURT READS STATUTES, IT GOES THE OTHER WAY, IT NARROWS
THEM TO SAVE THEM, IT DOESN'T EXPAND THEM TO DOOM THEM. I CAN AT LEAST CONFIDENTLY
SPECULATE THAT IF THERE WAS A PROSECUTION OF A CHILD AT THE BEACH WITH THEIR
FRIENDS, THERE WOULD BE AN OUTCRY, IT'S NOT A TRUST US ARGUMENT, IT'S REALLY TO
VERIFY WHAT THEY'RE SAYING, THEY'RE ALSO ASKING YOU TO TRUST THEM THAT
SOMEWHERE OUT THERE THERE'S THIS BEF VEE OF HORRIBLE PROSECUTIONS THAT EVERYONE
WOULD BE SHOCKED TO HEAR AND THAT NO ONE THINKS THE LEGISLATURE WOULD WANT TO
CRIMINAL LIEZ BUT BECAUSE WE CAN IMAGINE THAT HAPPENING IT WOULD JUSTIFY
STRIKING DOWN THE STATUTE. I DO THINK THE LEGISLATIVE HISTORY, MR. SHALOM BROUGHT
UP THE LEGISLATIVE HISTORY, I'M GLAD HE DID, I JUST WANT TO NOTE THAT I THINK
THAT ONE WITNESS SAYS IS NEVER GOING TO BE DISPOSITIVE OF WHAT THE STATUTE MEANS
BUT WHEN MR. IF ANYTHING KEL TESTIFIED HE EXPLAINED WHY THEY SPLIT OUT WHAT
WAS THEN A TO A AND B TO MAKE CLEAR THAT THE PURE YENLT REQUIREMENT WAS FLOWING
ACROSS AND THEN HE SAID IT'S A ROUGH PROPORTIONALITY AMONG ALL OF THIS
STUFF. I THINK IF YOU LOOK AT THE ISN'T IT STATEMENT OF JUNE 15, 2017, THEY SAY
THIS IS JUST EXPANDING THE CHILD PORNOGRAPHY, THEY THINK THAT THEY ARE DOING
SOMETHING THAT IS ALLOWED, THEY'RE TRYING TO DO FERBER, THEY'RE NOT TRYING
TO INVENTOR A NEW EXCEPTION, THEY'RE TRYING TO FALL WITHIN THE BOUNDS OF AN EXISTING
EXCEPTION UNDER FERBER. WE THINK THEY DID THAT AND WE CERTAINLY THINK YOU CAN
READ IT TO MAKE CLEAR THAT THEY DID THAT ON TO MAKE SURE THAT NO ONE IS WORRIED
THAT A CHILD IS EVER GOING TO BE WORRIED FOR POSTING A PICTURE ABOUT HER AND
HER FRIENDS ON THE BEACH AND IF THIS WERE EVER TO COME UP IT WOULD BE AN OBVIOUS CASE
FOR AN AS APPLIED CHALLENGE. BUT I DON'T THINK IT'S COVERED BY THE STATUTE
FAIRLY READ. JUST THE LAST THING I'LL SAY, THERE WAS SOME
QUESTION ABOUT WHETHER WE REALLY NEED THE STATUTE, MAYBE EVERYTHING ELSE, SOMETHING
ELSE CAN COVER IT. I'M NOT SURE THAT -- IT MAY BE POSSIBLE THAT SOME OF OUR HYPOS
COULD BE COVERED UNDER OTHER THINGS, THE LEGISLATURE CAN CHOOSE TO COVER
IT UNDER THIS WHEN A CHILD IS INVOLVED AS OPPOSED TO AN ADULT, IT WOULD ALSO BE
PROSCRIBEABLE FOR MR. HIGGINBOTHAM TO SAY THESE THINGS ABOUT A 19 YEAR OLD,
BUT THE LEGISLATURE THINKS IT'S WORSE TO SAY IT ABOUT A FIVE YEAR OLD.
JUSTICE NORIEGA: ON THAT NOTE DO YOU AGREE WITH YOUR COLLEAGUE THAT THIS WOULD HAVE
BEEN KOFRND UNDER AN OBSCENITY STATUTE. MICHAEL L. ZUCKERMAN: HE
COULD HAVE ALSO BEEN SPRUTED UNDER THE OBSCENITY STATUTE BECAUSE HE DID
SOMETHING HE CONCEDES OBSCENE AND HE HAD NO FIRST AMENDMENT RIGHT TO DO IT. THERE'S
A NARROW REMEDY HERE WHICH IS TO SAY HE LIVES OUTSIDE THE STATUTE, THE STATUTE
LIVES ON, THAT'S A FAR MORE TAIRLD REMEDY THAN WHAT THE APPELLATE DIVISION DID,
BUT HE DOESN'T, WHAT I THINK IS ESPECIALLY IMPORTANT IN MAKING CLEAR HE DOESN'T
HAVE A RIGHT TO SAY THESE THINGS AND ONE OF THE REASONS IS IT'S ALREADY
PROSCRIBED AS OBSCENITY BUT THE LEGISLATURE SAID WE THINK IT'S WORSE WHEN A
KID IS INVOLVED AND THE MOST IMPORTANT THING IS THAT THE STATUTE SURVIVES
WHEN YOU THINK OF ONE P SET OF FACTS, NO ONE KNOWS OF IS A CASE QUITE LIKE THIS.
IF THE COURT HAS NO OTHER QUESTIONS WE WOULD ASK YOU TO REVERSE THE DECISION
BELOW. CHIEF JUSTICE RABNER: THANK YOU. THANK YOU FOR ALL
THE FINE ARGUMENTS, WE'LL TAKE THE MATTER UNDER ADVISEMENT,