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Law School Case Brief

Massachusetts v. Oakes - 491 U.S. 576, 109 S. Ct. 2633 (1989)


Under U.S. Const. amend. I, the doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. The doctrine is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions.


In 1984, respondent Oakes took color photographs of his partially nude and physically mature 14-year-old stepdaughter, L. S. He was indicted, tried, and convicted of violating a Massachusetts statute (§ 29A) prohibiting adults from posing or exhibiting minors "in a state of nudity" for purposes of visual representation or reproduction in any publication, motion picture, photograph, or picture. The Massachusetts Supreme Judicial Court reversed the conviction. After holding that Oakes' posing of L. S. was speech for First Amendment purposes, the court struck down the statute as substantially overbroad under the First Amendment without addressing whether § 29A could be constitutionally applied to Oakes. It concluded that § 29A criminalized conduct that virtually every person would regard as lawful, such as the taking of family photographs of nude infants. Subsequently, § 29A was amended to add a "lascivious intent" requirement to the "nudity" portion of the statute and to eliminate exemptions contained in the prior version.


Was the Massachusetts statute (§ 29A) substantially overbroad under the First Amendment?


No, the question is moot.


The Court held that the amendment of the Massachusetts statute mooted the overbreadth question, since the repealed, former version of the statute could not chill protected expression in the future. However, since a live dispute remained as to whether the former version of § 29A could constitutionally be applied to Oakes, the Court vacated the judgment of the Massachusetts Supreme Judicial Court and remanded for further proceedings.

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