Massachusetts v. Oakes

Supreme Court of the United States · 1989 · Federal Courts

Federal CourtsFirst AmendmentOverbreadthMootnessFirst Amendmentoverbreadthfacial challengemootness

Facts

Massachusetts prosecuted Douglas Oakes under a statute that criminalized causing, encouraging, or knowingly permitting a minor to pose or be exhibited in a state of nudity for visual representation or reproduction. Oakes had taken about 10 color photographs of his partially nude 14-year-old stepdaughter, whose breasts were fully exposed in the photographs. The jury was instructed only on the nudity portion of the statute, not the sexual-conduct portion, and returned a general guilty verdict. After certiorari was granted, Massachusetts amended § 29A by adding a lascivious-intent requirement to the nudity provision and removing the prior exemptions.

Issue

Whether the Court should decide Oakes' First Amendment overbreadth challenge to the former version of § 29A after that version had been amended while the case was pending. If not, what disposition was appropriate when the sole question on which certiorari was granted had become moot but an as-applied dispute remained alive.

Rule

Overbreadth analysis is inappropriate when the challenged statute has been amended or repealed, because the former version can no longer chill protected expression in the future and the practical justification for facial overbreadth review disappears. When the sole question on which certiorari was granted becomes moot, but part of the dispute remains live in a state-court case, the proper course is to vacate the judgment below and remand for further proceedings.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Oregon, Lena Ortiz was convicted under a state law that broadly prohibited displaying any image of a nude minor in a printed publication. The Oregon Supreme Court reversed on the ground that the law was facially overbroad under the First Amendment. While the State's petition for review on that facial question was pending, the legislature replaced the statute with a narrower version requiring proof of lascivious intent.

How should the reviewing court treat the facial overbreadth question about the former statute?

Explanation. The majority reasoned that substantial overbreadth is a narrow, judicially created doctrine justified by the risk that protected expression will be chilled in the future. Once the challenged statute has been amended or repealed, the former version can no longer chill future expression, so overbreadth analysis is inappropriate. The Court therefore does not reach the facial overbreadth question regarding the old law.