A convicted sex offender in Washington challenged a provision of his probation that prevented him from “possessing or accessing pornographic materials” and won!

The definition of “pornographic materials”, he argued, is unconstitutionally vague. It could mean watching the film Titanic, or having a Victoria’s Secret catalogue.

The Court agreed, finding, “the statute must “give the person of ordinary intelligence a reasonable opportunity to know what [behavior] is prohibited.” Grayned, 408 U.S. at 108. Second, the law must provide explicit standards to those charged with enforcing the law in order to prevent “arbitrary and discriminatory” application. Id. Finally, a vague law that encroaches on “‘sensitive areas of basic First Amendment freedoms'” naturally inhibits the exercise of those freedoms because individuals who are uncertain of the meaning of a statute will steer “‘far wider”‘ than necessary in order to ensure compliance. Id. at 109 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964)).

The issue is very similar to our Internet Identifier case, where the State requires us to register “internet identifiers” for websites, but doesn’t tell us which sites we have to register and registrants and law enforcement might (and often do) have completely different ideas as to what should be registered.

 

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