State of New Hampshire v. Timothy Barr

NOTICE: This speech-to-text record was generated from automated speech recognition, is likely to contain errors or inaccuracies, and should be verified against the recording provided by the Supreme Court at https://www.courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream/2019.

This is Case 2018 0 4 6 4. State of New Hampshire v Timothy Barr. Good afternoon. May it please the court.

My name is Thomas Barnard. I represent Timothy Barr. I've reserved one minute for rebuttal. I'd like to make three points today. First, child pornography is not an independent exception to the First amendment. Second Barr's argument is narrow. And third, the state's argument is broad. Neither this court nor the US Supreme Court has ever affirmed a child pornography conviction based on photographs or video that depict lawful conduct. Have the Federal Circuit Courts done? So I believe there's one or two federal circuit courts that have, um, weighed in on this issue. Have You familiar with this eighth circuit decis? Eighth circuits, uh, decision in Rouse? Yes. Came, came down last month. Yeah. Pretty close to this case, isn't it? Um, it is, it is. I think the defendant there was a little older. Um, what I would encourage the court to do is to look closely at the rationale for that decision being. There Isn't a whole lot of it. Yeah. There, there, there is not. So in, in that case, the defendant, um, sent the photographs to his partner to the 16 or 17-year-old girl, and he was convicted of distribution. And the court said, um, well, that act is, um, integral integrally related to a criminal act, which is the act of creating the images in the first place. The problem there, it's bootstrapping. Uh, if, if the creation of the images is the underlying criminal act, well that's speech as well. So what act is that related to? And there's no satisfactory answer to that question. So the rationale just doesn't withstand scrutiny. In that case, the US Supreme Court has twice stated that photographs that depict lawful conduct are not categorically excluded from the First Amendment. In Ashcroft, the court stated quote where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment. And in Stevens, the court stated that clarified that in fervor a seminal child pornography case, um, the analysis was grounded. Quote, in a previously recognized, long established category of unprotected speech, namely, that used as an integral part of conduct in violation of a criminal statute. Are these photographs obscene? There was no allegation, uh, below that the photographs or video were obscene. But even if they were, um, the mere possession of obscenity is constitutionally protected. But you do agree that under the statute as written, it is child pornography. I agree that this conduct violates the statute ri has written. It is our argument that as applied the statute is unconstitutional. The analysis, um, under free speech has two parts. And, and this is why our argument is narrow. So the first part is, is is this categorically excluded from the protection of the First Amendment? And as I've argued for that to happen, the speech has to be ally related to criminal conduct. But even if it doesn't fall within that exception, there's still a second part of the analysis where courts apply strict scrutiny. They ask whether the law as applied as narrowly tailored to serve a compelling government interest. So even if there's no categorical exception, the government may still have a compelling interest. And as an example, I give the law that prohibits the public dissemination of private sexual images. Um, the creation of that, of those images doesn't involve any, um, criminal act, but it's still constitutional to predict to prohibit the public dissemination because of the relational harm that that dissemination would cause. And because the government is just prohibiting the public dissemination, that law as applied is narrowly tailored. Um, so, And that that law doesn't apply to anybody a speci specific age. Right. Right. So why isn't this law narrowly tailored given that it only applies to images of people under the age of 18? The law's not narrowly tailored because, um, to the extent that the, the government is concerned about the relational harm, if these images get out in the public, um, the law doesn't require any public dissemination. The only people who viewed these images were Barr and Al, and they didn't see anything in the, in the images that they didn't that Personal Well, parents, a parents saw one of them apparently. Right. The parents did discover the images. Yeah. And, um, and as a result of a prosecution, unfortunately, um, some other people involved in the prosecution saw the images as well. Um, but that wasn't conduct that Barr al engaged in it. But my point is, if the, if the harm the government is trying to prevent is the public dissemination of the photographs then to be narrowly tailored, that's the harm the statute has to, has to target and has to prevent not the private possession of the photographs by the individuals who were participating in the conduct. Um, so our argument is narrow partners in a lawful consensual relationship have a constitutional to have a constitutional right to create and share between themselves their own sexual images. Um, and the state's argument, I was trying to think of a parallel, um, to the state's position, and I couldn't, you've got the government saying it's lawful for individuals to engage in conduct. Um, they're the only ones with a legitimate interest in that conduct. And they both consent to photographs. But at the same time, the government is saying it's unlawful to take a photograph of that lawful activity. I can't think of any parallel to this. The state. So if you, you, so you, you don't dispute the fact that if LN was 15 years old and 364 days old at the time these photographs were taken, then that would be a crime. Um, the conduct depicted in the photographs would be a crime and therefore the photographs would not be constitutionally protected. Absolutely. The state's argument, um, is that if a 16 or a 17-year-old has consensual lawful sexual activity, then the moment that 16 or 17-year-old or their partner takes out a phone and takes a picture, both of them are guilty of manufacturing, child pornography And subject to the juvenile delinquency statute, The state can wait until the 16 or 17-year-old turns 18 and charge them as an adult. Probably still can, still can. In the case of Al for instance, that would be under the state's argument. The state can do that. It's punishable by a maximum sentence of up to 30 years in prison and it requires lifetime registration as a sexual offender. And why isn't your argument, uh, best made to the legislature that that's not where the lines ought to be drawn? Well, I think you could make the argument to the, to the legislature, but the core problem is that the Constitution protects speech that does not fall within an exception unless it passes strict scrutiny. The law passes strict scrutiny here, there's no exception. And the law is not narrowly tailored to any government interest. So, but you acknowledged earlier that this is child pornography, right? It depicts a child and it satisfies the definition of pornography. Yeah. So that is one of the exceptions That, well, that's where I take issue. Um, my argument is that child pornography is not this a freestanding, independent exception to the First Amendment. They didn't have photography when the First Amendment was ratified, much less pornography or child pornography. The exception is conduct that is integrally related to, to, or speech that is integrally related to criminal conduct. And that's why the court reached the decisions it did in Ferber and Osborne. And it's why the court, um, struck down the law in Ashcroft. Um, so there's not an independent child pornography 'cause the underlying conduct wasn't criminal. Exactly. Exactly. And it's the rationale of this court's decision in in Zeel as well. Um, and if you look at the specific language the court used in Ashcroft and in Stevens, um, this is the direction the court is going. I agree. If it, if we were in 1980 and all we had was fervor and we just had the opinion in fervor, sure. Looks like child pornography is an independent exception. Um, but that's not where we are. Um, we have Ashcroft, we have Steven, But inside Dell there was no, despite the well worded descent, there was no, um, uh, proof frankly that the, uh, the, uh, naked people were in fact children. There was no indication that there were children. There were just heads imposed upon naked bodies In Zael. I Thought so. Um, my impression in Zael was that it was understood that, um, the, the faces of the individuals, those were faces of children. Correct. Actual children. Mm-Hmm. Um, Campers. Yeah, campers. 'cause I, yeah, the defendant in that case, I think was a camp counselor or somehow worked in a camp, camp photographer, um, right. And then he, he superimposed those faces upon the images of, of adults engaged in sexual abuse. That's exactly right. Um, but given the, the breadth of the state's argument and the implication that it would allow the state, um, to charge partners in a lawful consensual relationship, merely because one of them chose to take a photograph, um, I invoke the language that the Supreme Court used in Stevens to say that that position is startling and dangerous and this court should reject it. If the court has no further questions. Does it matter who took the photos in this situation? It, it doesn't conduct is either constitutionally protected or it is not. We're arguing the taking the creation, the receiving all the same. It's all the same according to the statute. As soon as they press that button on the cell phone, regardless of which one it was, they were both guilty. And there's no legal basis if conduct is, is constitutionally protected. There's no legal basis to say, to say, well, it's protected for one participant, but but not for another. The court has no further questions. You still have one minute afterward? Not now. I do. Yes. Thank you. May please. The court, Susan McGinness for the State of New Hampshire. Um, I have to disagree with the defense that Stevens said that child pornography is no longer a freestanding exception to the First Amendment. What they said in Stevens is quote, when we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost benefit analysis. In Ferber, for example, we classified child pornography as such a category. And then they explain why they did it. But they have, they said that in fervor, they, they specifically said that they identified child pornography as a category of speech that was fully outside the protections of the First Amendment. And as far as the defendant's argument that the underlying conduct has to be illegal, that it has to be speech that's integrally, integrally related to other criminal conduct. That doesn't make any sense. Because when the case of perjury, perjury is the speech and the conduct that is illegal incitement. The incitement is the speech and the conduct that is illegal. It doesn't have to be some other criminal act. The sex does not have to be illegal for the filming of it to be illegal. So could the state, assuming the legislature raise raises the age to 21 from 18 under the child pornography statute? So is that conduct still outside of First Amendment protections, photographs? Um, do you have the same argument If they decide that that is child pornography, that you can't consent to having sexual acts filmed until you're 21? I mean, that's basically what this is. The child can't consent to being photographed. But you can consent to have sex. Yes, because the defense is equating sexual assault with sexual abuse and sexual exploitation. But as the court stated in Ferber and the declarations of findings and purposes for the statutes states, there has been a proliferation of exploitation of children through their use as subjects in sexual performances. So the crime is using a child as a subject in a sexual performance. So what if another child uses a child for that purpose? Address attorney barnard's Question if they use them. Well, the, the declarations of findings and purposes also goes on to state, it is the purpose of this chapter to facilitate the prosecution of those who exploit children in the manner specified, which is using them as subjects of sexual performances. So a 17-year-old filming another 17-year-old having sex together, would that violate the statute? It would violate the statute. And I don't know it, the state has to make calls about who was exploiting whom in those cases. Um, we don't charge children with sex assaults if they engage in sex with adults because they're the victims. They're the class of persons intended to be protected. So even if the 16-year-old takes the photo and sends it to her older partner, Yes. What's the older partner supposed to do? Delete it. Delete it, give it to the police. There's an exception in the statute for providing it to the police. You can't get charged with possessing it if you immediately notify somebody you'd done it or delete it immediately. And here that even if you could charge a, the juvenile, the defendant, if you, the trial transcript proves that the defendant exploited this girl. So maybe having sex with her wasn't a sex assault, but it was definitely an exploitation of her. And she thought they were in a relationship. But quite frankly, the only thing the relationship really consisted of once they started meeting in person was sex and filming. Well, she understood based on the testimony that this was that kind of relationship apparent according to the victim. She, this, the, the defendant was one of a number of people that she participated in this kind of activity with. She did. And I think she said it to save face possibly, but it, regardless of why it happened, he's 30, she's 16. And she also testified that I thought we were in a relationship. Now I realize it really wasn't because we never went anywhere. We never met, I never met any of his friends. He took me to his house twice and had sex with me. He took me to a bath. We met at a bathroom at a mall twice and had sex and filmed it. And she didn't volunteer to do these photos. He said to her, I want the photo. This is exactly how I want you posed in it. And in one instance she said no. And then he said, ah, come on. Daddy needs it to get through the day. So does it violate the statute if as here Al took pictures of herself, as soon as she takes a picture of herself in a sexually suggestive fashion, does that violate the statute? Is she in violation of the statute when she does that? If you just looked at the language of the, that's part of the statute itself. But if you look at the purpose, the purpose is to prosecute people who exploit children by using them for sexual performances. So it's, it's kind of a technical violation of the statute. But in that case, if she's done it all on her own and nobody's asked her to do it, and the person doesn't keep, she sends it to somebody and they keep it, that's a problem. That's possession. That's possession. And the reason they said in the other cases, like Ferber and Osborne is that we punish people who promote child pornography, sell child pornography, possess child pornography, or do anything with child pornography other than delete it or turn it over to the police. Because the only way to stop people from exploiting children by using 'em in sexual performances is to dry up the market for it. And the only way to dry up the market for it's to get rid of it. And unless we have harsh laws that prohibit people from having it, producing it, any of those things, we can't stop it. And the reason they raised the age to 18 is because of, part of the problem was if you have to prove it's the child's under 18, it's easier to do if the person is 18 than it is at 16 because of the differences in Is There record evidence of that being the reason why the age was raised 18? Um, the and the Age of consent state at 16. There is some reference, I believe in the, um, in the legislative history. I'm sorry I came into the case late. Um, but the United States Supreme Court has acknowledged the same sort of thing that, so yes, taking the picture of yourself is a problem because that's child pornography. But if you never do anything with it and you are not doing it at someone else's behest, that's a real different issue. Here, the defendant's 30, he gave this girl a phone so she could do this stuff and not use her own phone to do it. So her parents wouldn't know about it. It's, this is exploitation. And I wanted to point out too that in, um, a later case after, in po INE versus United States, it's 5 72 US 4 34, I believe the state cited it in its brief. The court talks about child pornography is now treated with ease on the internet, the number of still images and videos memorializing the sexual assault and other sexual exploitation of children. So it's not limited to sex assault, it's sexual exploitation. And the legislature in this state and almost every other state has made the decision that creating, producing anything to do with anything involving a picture of a child under 18 engaging in a sexual act or even simulating a sexual act is child pornography. That's the other problem with the defendant's argument. Having a child, children simulate a sexual act is not sex. I don't don't think that's a sex assault under our sexual assault statutes if you're not doing it or touching them or there's no actual contact being made. But it looks like there is, that's not sex assault, but it is sexually abusive and it's pornography. So You're entitled, you say the legislature's entitled to make that exception and reach via the statute, uh, to prohibit that behavior. Yes, absolutely. And every court that has addressed the issue has held that even if the age of consent is less than the age for child pornography, you can still prosecute people for child pornography even if the underlying sex acts are legal. Has anybody, any court gone the other way? Not that I could find, no. You're familiar with the rouse's decision. Have you seen that Eighth Circuit Court? Um, I have an eighth Circuit court opinion. I'm not, I don't know if it was that one. I've seen Bach ro I do not know if I've seen It. Was it issued just in SEP September 3rd? Oh, so it's very recent. Yes, Probably not. I just relied on the cases the state had already pulled because generally we can't bring in information. That's fair. No, Well, it supports you Position, I can tell you that the defendant in the reply brief says that the state's reliant on USV Bach, which is a um, excuse me, an eighth. An eighth circuit case is misplaced because the defendant rid and raise a First Amendment challenge in that case. But the court said the First Amendment does not prevent prosecution for child pornography. And Congress may regulate pornography involving all minors under the age of 18 if it has a rational basis for doing so. You don't need strict scrutiny, even if it's not a categorical approach to child pornography, even if it's not completely excluded from the first amendment. The court has repeatedly said that the state does not need as strong a justification for regulating child pornography as it does for other things. So they couldn't possibly intend to apply strict scrutiny to these type of laws. And they've always applied rational basis. And I don't think Steven's changed anything other than saying that this balancing is not the only reason we made it a categorical. We created the category of porn. Child pornography is one of those categories that's ex completely excluded under the First amendment. Lemme just ask you about the other issue. The opening the door issue. Yes. With the, uh, opening argument. Um, I think one of the points you make is that that, uh, comment or, uh, the observation made by the prosecutor was completely irrelevant. So how could it be a problem? Um, that is the argument that the was made in the brief. Yeah. And uh, I guess I wanted you to expand on that, but I don't know, I don't quite follow it. It seems like if it's irrelevant, it's particularly problematic. Well, I think that, here's the thing is that the, my perspective on it is there were two specific acts that the prosecutor said were unnatural. She didn't say having sex in general was unnatural, that it was two specific acts and it really wasn't relevant to the charges themselves. But if you look at the record, the defendant, even though they didn't, they sprung this first amendment issue on the state after the state rested. They had made it clear beforehand that they were raising a, um, jury nullification issue, which They got the charge for, which they got, Yes, they did get a jury nullification, um, instruction. They were essentially allowed to sort of argue it, but they got an instruction, in fact, more of an instruction than what is usually given. And I think it might have been relevant to the nullification argument is that him directing her and telling her how to do it and with the respect to two particular acts, that those acts were unnatural to her. Not just having sex in general, but those acts. And it really wasn't relevant to the charges itself. It was kind of relevant to the defendant's. Um, his jury nullification defense. So Well, Did the state, uh, portray the the victim as sexually innocent? No. And she actually testified, as you noted, that noted that he was one of her players for sex. I mean, she didn't portray herself as sexually innocent. The way she talked about what happened wasn't either, I mean, didn't portray her as it either, the word she used for the particular acts, the description she gave. She even said that making the, sending these types of photographs wasn't unusual that everybody at school did it, that she'd done it before. So I don't see how it could have possibly harmed the defendant. And again, it really wasn't relevant to the charges themselves. It might've been relevant to the First Amendment argument, which was not for the jury to decide. And it might've been relevant to the nullification argument, which it was up to the jury to decide if this was so far outside the bounds of what we think should be punished that he shouldn't be. And their compromise was they punished him for one act. 'cause there were several photographs taken in one incident of the same particular act. And they punished him for one, they found him guilty of one of the acts from rising from a single incident Manufacturer. And possession Yes. Each charge. Well, there was the possession charge was the photograph she sent him. That was one. And then there were, um, he two manufacturing and then there was a video he made, and then there were multiple photographs from a separate incident and they had convicted him of one of those photographs. Okay. But I think what they did also reflects that our society doesn't think that it's okay to film people of that age having sex. And one of the reasons for that is children may realize the direct consequences of sex itself, but I really don't think they understand that once you've photographed it on a cell phone or sent it across Facebook or email, it's never gone. Your light's on. Thank you. Thank You, Mr. Barnard. Thank you, your Honor. You're welcome. So the state makes several references to this concept of exploitation. And the state suggests that the statute will only be used to prosecute people who exploit others. Several problems with that argument. First, the word exploitation does not appear anywhere in the operative text, uh, of the statute. Um, second, the state offers no definition for exploitation. What does it mean third, under the state's argument? It's the prosecutor, prosecutor. It probably means taking advantage of What does that mean? But it's not a separate crime is your point. Right. It's it's not a separate crime. It's not a defined crime. Put it that Way. No. And the state says that it's the prosecutor who decides whether there's exploitation or not. Here, for instance, nobody asks the jury to find whether there was exploitation or not. If they had, there would've been, that would've been a hotly disputed issue. There's facts in the record to support both sides. Um, and ultimately it's similar to the argument that the government made in Stevens that, well, you can trust us, we'll use this statute responsibly. And the US Supreme Court's response was, we would not uphold an unconstitutional statute merely because the government promised to use it responsibly. The court has no further questions. Thank you Mr. Barner. Case submitted, court's adjourned. Thank you all.