Defendant appeals from the trial court's order denying his motion to dismiss an indictment, which charged him with fifteen counts of second-degree child endangerment, N.J.S.A. 2C:24-4(b)(4), (5)(a)(i), (5)(a)(ii); and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(b)(5)(b)(iii). These provisions were enacted in 2018 as part of the child erotica amendment to the endangerment statute. L. 2017, c. 141 (the child erotica amendment). Finding that the statute is both unconstitutionally vague and overbroad, the court reversed.
N.J.S.A. 2C:24-4(b)(4) makes it a second-degree crime to photograph or film a child in a sexually suggestive manner, which necessarily requires the viewing and possession of such material. N.J.S.A. 2C:24-4(5)(a)(ii) makes it a second-degree crime to possess child erotica with intent to distribute it. Finally, N.J.S.A. 2C:24-4(5)(b)(iii) makes it a third-degree crime to possess child erotica. The amendment's expanded definition of child pornography, which includes child erotica (i.e., images that "portray a child in a sexually suggestive manner"), is at odds with New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990); and Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
The child erotica amendment is overbroad because it precludes the private possession of material the United States Supreme Court has said is protected by the First and Fourteenth Amendments. Based on the amendment's definition of "portray a child in a sexually suggestive manner," any image of a child could appeal to sexual interests and thus be proscribed. Therefore, the amendment is also vague because a person of ordinary intelligence would not understand the limits of permissible conduct.
