SJC Upholds Child Porn Law

The Massachusetts Supreme Judicial Court today issued a decision, Commonwealth v. Kenney, upholding the First Amendment constitutionality of the state law that makes it a crime to possess child pornography. The court rejected the defendant's contentions that the statute violates the First Amendment because it is vague and overbroad.

With regard to overbreadth, the defendant argued that the statute would apply to films with artistic merit, citing as an example Hounddog, a film recently released at the Sundance Film Festival that depicts the rape of 12-year-old girl. The SJC answered that argument by saying that it does not invalidate the statute and that claims of artistic merit would have to be evaluated on a case-by-case basis.

The defendant also argued that the statute is unconstitutional because it contains an impermissible scienter requirement insofar as it applies to situations in which a defendant "knows or reasonably should know" that the person is under age 18. The SJC replied that, if a defendant disputes actual or constructive knowledge of a child's age, the state meets its burden of proof by showing that the physical disparity between the subject and a person who is 18 is such that it would be obvious, beyond a reasonable doubt, to a reasonable person.