Petitioner
State of Massachusetts
Respondent
Douglas Oakes
Petitioner's Claim
That the conviction of Oakes, who took photographs of his partially nude stepdaughter, should be upheld under a Massachusetts law prohibiting adults from"posing or exhibiting nude minors for purposes of visual representation or reproduction in any book, magazine, pamphlet, motion picture, photograph, or picture."
Chief Lawyer for Petitioner
James M. Shannon, Massachusetts Attorney General
Chief Lawyer for Respondent
Richard J. Vita
Justices for the Court
Harry A. Blackmun, Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Byron R. White
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
21 June 1989
Decision
The Court send Oakes's case back to a lower court to determine if his conviction should be upheld under the original statute.
Significance
The Supreme Court came to some important conclusions about the concept of "overbreadth"--the idea that a statute is so broad and sweeping in what it callsillegal, it might have a "chilling effect," discouraging speech or activitythat is actually protected under the Constitution.
One afternoon in 1984, Douglas Oakes took ten color photographs of his 14-year-old stepdaughter, L. S. He photographed her in the basement of the home where he, she, and her mother lived together, with L. S. wearing nothing but red-and-white-striped bikini bottoms and a red scarf that only partially coveredher breasts. As Justice Scalia later described them, the photographs were "sexually provocative . . . of the type frequently found in magazines displayedby storekeepers in sealed cellophane wrappers."
Indeed, as L. S. testified at Oakes' trial, her stepfather told her that he "wanted to make her big for Playboy." When L. S. saw the developed photographs, she tore them up and threw them in the woods, but, according to hertestimony, Oakes made her find them and give them back. L. S. also testifiedthat Oakes had taken the pictures while her mother was away. The case againstOakes began because of the complaint L. S. made against him.
Overbroad or Not?
Oakes was sentenced to ten years in prison for violating a Massachusetts statute that read, in part:
Oakes appealed, and the Massachusetts Supreme Court reversed his conviction.They found that Oakes's posing L. S. for the semi-nude photographs was a kindof self-expression, or "speech," and was therefore guaranteed under the First Amendment, which protects freedom of speech. The majority also found that the Massachusetts statute was overbroad.
As it is used in U.S. constitutional law, a statute is overbroad if it prohibits not just actions that might reasonably be considered illegal, but also actions that are protected by the U.S. Constitution. In the case of the Massachusetts statute, the prohibition against posing under-aged children in "any act that depicts . . . sexual conduct" might be considered illegal. However, the act also prohibited posing under-aged children "in a state of nudity." TheMassachusetts Supreme Court thought this was going too far. In their view, the statute "criminalized conduct that virtually every person would regard as lawful, [making] a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool."
Overbroad statutes have one very special feature. Whereas most laws can be challenged in court only on the grounds that they are directly affecting the plaintiff, an overbroad law can be challenged on the grounds that it might adversely affect someone else. In other words, Oakes could challenge the Massachusetts law not on the grounds that he had been hurt by it, but on the groundsthat such a law posed a danger to free speech. Even if Oakes had been committing an act that a better-written law could condemn, he was still free to challenge the law on the grounds that another, more innocent person would be unduly hurt by the law.
Creating a "Chilling Effect"
Before the Supreme Court had time to review Oakes' case, the Massachusetts state legislature revised the law. They specified that only nudity photographed"with lascivious intent" was illegal, and they removed the exemptions for medical, scientific, and artistic purposes. The Supreme Court agreed that thisnew law was not overbroad. Unlike the original statute, it would not have what is known as a "chilling effect"--that is, it would not keep people from exercising their constitutional rights of free expression for fear of being arrested.
But the important question of what to do with Oakes still remained. His challenge to the original statute had been based on the premise that the statute was overbroad, that it did have a chilling effect on the free speech of others. By rewriting the law, the Massachusetts legislature had removed that chilling effect. On the question of whether or not Oakes's case would still be considered, the Court was divided. A plurality of justices--enough to carry the vote but less than a majority--agreed to remand Oakes's case back to a lower court. The lower court would then be free to reconsider Oakes's case.
However, some justices strongly disagreed. They felt that part of the point of calling a law overbroad was to discourage legislatures from passing such sweeping legislation. If the Massachusetts legislature was not penalized by losing the chance to convict Oakes, the justices feared it would not learn to restrain itself in the future. As Justice Scalia wrote in his partial dissent,if no valid convictions are lost when an overbroad law is thrown out, "then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place."
In other words, some of the justices felt that unless legislatures lose something by writing overly broad laws--as in this case, they might lose the chance to convict Douglas Oakes--they might tend to write broad, sweeping laws andjust wait for the courts to narrow them. Meanwhile, the overbroad laws wouldhave a chilling effect, and many law-abiding citizens would have their constitutional rights restricted.
Dissension in the Court
The Supreme Court justices disagreed on just about every aspect of the case.Some wanted to remand Oakes back to a lower court; others disagreed. Some considered the original Massachusetts statute overbroad; others thought the original law was perfectly appropriate. The one question that won a majority of the Court was the issue of overbreadth. Five justices could agree that in order to preserve our constitutional freedoms, defendants had to be able to object to a law not just because it restricted them, but also because it might have a chilling effect on others.
The result of this agreement is that legislatures now have to be more carefulnot to write overly broad laws. They must take more trouble to respect everyone's constitutional rights, especially First Amendment rights to free speech. That respect for rights is the most important legacy of Massachusetts v.Oakes.
Related Cases
State of Massachusetts
Respondent
Douglas Oakes
Petitioner's Claim
That the conviction of Oakes, who took photographs of his partially nude stepdaughter, should be upheld under a Massachusetts law prohibiting adults from"posing or exhibiting nude minors for purposes of visual representation or reproduction in any book, magazine, pamphlet, motion picture, photograph, or picture."
Chief Lawyer for Petitioner
James M. Shannon, Massachusetts Attorney General
Chief Lawyer for Respondent
Richard J. Vita
Justices for the Court
Harry A. Blackmun, Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Byron R. White
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
21 June 1989
Decision
The Court send Oakes's case back to a lower court to determine if his conviction should be upheld under the original statute.
Significance
The Supreme Court came to some important conclusions about the concept of "overbreadth"--the idea that a statute is so broad and sweeping in what it callsillegal, it might have a "chilling effect," discouraging speech or activitythat is actually protected under the Constitution.
One afternoon in 1984, Douglas Oakes took ten color photographs of his 14-year-old stepdaughter, L. S. He photographed her in the basement of the home where he, she, and her mother lived together, with L. S. wearing nothing but red-and-white-striped bikini bottoms and a red scarf that only partially coveredher breasts. As Justice Scalia later described them, the photographs were "sexually provocative . . . of the type frequently found in magazines displayedby storekeepers in sealed cellophane wrappers."
Indeed, as L. S. testified at Oakes' trial, her stepfather told her that he "wanted to make her big for Playboy." When L. S. saw the developed photographs, she tore them up and threw them in the woods, but, according to hertestimony, Oakes made her find them and give them back. L. S. also testifiedthat Oakes had taken the pictures while her mother was away. The case againstOakes began because of the complaint L. S. made against him.
Overbroad or Not?
Oakes was sentenced to ten years in prison for violating a Massachusetts statute that read, in part:
Whoever with knowledge that a person is achild under eighteen years of age . . . hires, coerces, solicits, or entices,employs, procures, uses, causes, encourages, or knowingly permits such childto pose or be exhibited in a state of nudity or to participate or engage inany live performance or in any act that depicts, describes, or represents sexual conduct for purpose of visual representation or reproduction in any book,magazine, pamphlet, motion picture film, photograph, or picture shall be punished . . .The law went on to specify the punishment: ten to 20years in prison, a fine of $10,000 to $50,000, or both. The law also specified that a person would not be prosecuted if such pictures were intended for ascientific or medical purpose, or for "an educational or cultural purpose for a bona fide school, museum, or library."
Oakes appealed, and the Massachusetts Supreme Court reversed his conviction.They found that Oakes's posing L. S. for the semi-nude photographs was a kindof self-expression, or "speech," and was therefore guaranteed under the First Amendment, which protects freedom of speech. The majority also found that the Massachusetts statute was overbroad.
As it is used in U.S. constitutional law, a statute is overbroad if it prohibits not just actions that might reasonably be considered illegal, but also actions that are protected by the U.S. Constitution. In the case of the Massachusetts statute, the prohibition against posing under-aged children in "any act that depicts . . . sexual conduct" might be considered illegal. However, the act also prohibited posing under-aged children "in a state of nudity." TheMassachusetts Supreme Court thought this was going too far. In their view, the statute "criminalized conduct that virtually every person would regard as lawful, [making] a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool."
Overbroad statutes have one very special feature. Whereas most laws can be challenged in court only on the grounds that they are directly affecting the plaintiff, an overbroad law can be challenged on the grounds that it might adversely affect someone else. In other words, Oakes could challenge the Massachusetts law not on the grounds that he had been hurt by it, but on the groundsthat such a law posed a danger to free speech. Even if Oakes had been committing an act that a better-written law could condemn, he was still free to challenge the law on the grounds that another, more innocent person would be unduly hurt by the law.
Creating a "Chilling Effect"
Before the Supreme Court had time to review Oakes' case, the Massachusetts state legislature revised the law. They specified that only nudity photographed"with lascivious intent" was illegal, and they removed the exemptions for medical, scientific, and artistic purposes. The Supreme Court agreed that thisnew law was not overbroad. Unlike the original statute, it would not have what is known as a "chilling effect"--that is, it would not keep people from exercising their constitutional rights of free expression for fear of being arrested.
But the important question of what to do with Oakes still remained. His challenge to the original statute had been based on the premise that the statute was overbroad, that it did have a chilling effect on the free speech of others. By rewriting the law, the Massachusetts legislature had removed that chilling effect. On the question of whether or not Oakes's case would still be considered, the Court was divided. A plurality of justices--enough to carry the vote but less than a majority--agreed to remand Oakes's case back to a lower court. The lower court would then be free to reconsider Oakes's case.
However, some justices strongly disagreed. They felt that part of the point of calling a law overbroad was to discourage legislatures from passing such sweeping legislation. If the Massachusetts legislature was not penalized by losing the chance to convict Oakes, the justices feared it would not learn to restrain itself in the future. As Justice Scalia wrote in his partial dissent,if no valid convictions are lost when an overbroad law is thrown out, "then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place."
In other words, some of the justices felt that unless legislatures lose something by writing overly broad laws--as in this case, they might lose the chance to convict Douglas Oakes--they might tend to write broad, sweeping laws andjust wait for the courts to narrow them. Meanwhile, the overbroad laws wouldhave a chilling effect, and many law-abiding citizens would have their constitutional rights restricted.
Dissension in the Court
The Supreme Court justices disagreed on just about every aspect of the case.Some wanted to remand Oakes back to a lower court; others disagreed. Some considered the original Massachusetts statute overbroad; others thought the original law was perfectly appropriate. The one question that won a majority of the Court was the issue of overbreadth. Five justices could agree that in order to preserve our constitutional freedoms, defendants had to be able to object to a law not just because it restricted them, but also because it might have a chilling effect on others.
The result of this agreement is that legislatures now have to be more carefulnot to write overly broad laws. They must take more trouble to respect everyone's constitutional rights, especially First Amendment rights to free speech. That respect for rights is the most important legacy of Massachusetts v.Oakes.
Related Cases
- Ginsberg v. New York, 390 U.S. 629 (1968).
- Broadrick v. Oklahoma, 413 U.S. 601 (1973).
- Bigelow v. Virginia, 421 U.S. 809 (1975).
- New York v. Ferber, 458 U.S. 747 (1982).
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