Unconstitutionally Vague Probation Term: No Porn

In attempting to describe what is obscene, U.S. Supreme Court Justice Potter Steward coined the famous phrase, “I know it when I see it.” Jacobellis v. Ohio (1964) 378 U.S. 184 (in reference to what is “hard core” pornography, as distinguished from nudity that may be regarded as art and protected under the First Amendment).

Justice Stewart’s answer, of course, is hopelessly vague and incapable of objective evaluation. It matters on one person and that person’s subjective determination.

This observation, now almost sixty years old, seems to case a long shadow even to today and the recent case of People v. Michael Gruis, an August 1, 2023 California Court of Appeal ruling from the First District, which is worth taking a closer look at if one is placed on probation for a sex offense.

Mr. Gruis pleaded no contest to one count of possession of child pornography (Penal Code § 311.11(a)) and Judge Susan L. Greenberg in San Mateo County Superior Court placed him on two years of probation with one year in county jail. He was found in the possession of over 500 images of his girlfriend’s thirteen year old daughter in various states of undress, as well as three videos of her, one being 17 minutes long while she was in the bathroom.

One of the terms of his probation was that he abstain from possessing pornographic “magazines, videos, pictures or written material or images unless prescribed by a therapist during the course of your treatment.”

Mr. Gruis appealed the order of probation to the California Court of Appeal for the First District (in San Francisco), arguing that the condition of probation prohibiting him from possessing pornographic materials, claiming that the term “pornographic” is unconstitutionally vague.

The First District agreed with Mr. Gruis. It began its analysis by reminding the reader that “[i]n granting probation, the trial court has broad discretion to impose conditions that foster rehabilitation and protect public safety, but that discretion is not boundless.” People v. Carbajal (1995) 10 Cal. 4th 1114, 1120 – 1121.

Such conditions may be challenged as unconstitutionally vague and overbroad. In re Sheena K. (2007) 40 Cal. 4th 875, 887.

The appellate court then explained that “the underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ The rule of fair warning consists of the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders, protections that are embodied in the due process clauses of the federal and California Constitutions.” In re D.H. (2016) 4 Cal. App. 5th 722, 727.

To withstand a vagueness challenge, a probation condition must be sufficiently precise for probationers to know what is required of them, and for the court to determine whether the condition has been violated. Sheena K., supra, 40 Cal. 4th at 890.

A claim of vagueness will be rejected if the language of the condition is susceptible of any reasonable and practical construction or its terms may be made reasonably certain by reference to other definable sources. People v. Lopez (1998) 66 Cal. App. 4th 615, 630.

Turning to Mr. Gruis’ terms of probation, the First District observed that “there appears a general consensus among courts, including those upholding no pornography conditions of probation or supervised release against constitutional challenges, that the terms ‘pornographic’ and ‘pornography,’ standing by themselves, are subjective and vague.” See, e.g., D.H., supra, at 728 – 729; People v. Pirali (2013) 217 Cal. App. 4th 1341, 1353. As one court observed, the term “pornographic” could conceivably encompass many well-known works of artistic and cultural significance featuring nudity or sexually explicit material. Unites States v. Loy (3d Cir. 2001) 237 F. 3d 251, at 264.

Here, even the People acknowledge that the language of the instant no-pornography condition, without more, does not pass constitutional muster. Moreover, the probation condition does not actually define pornographic by reference to Penal Code §§ 311.11(a) and 311.4(d), leaving probation officers, prosecutors or judges to find a violation on a subjective basis, “with the attendant dangers of arbitrary and discriminatory application.” Sheena K., supra, 40 Cal. 4th at 890.

The appellate court therefore remanded the matter to the trial court to modify the conditions to make them constitutional or strike the condition. If the court were to modify the condition, the appellate court suggested that the material be defined as having a primary purpose to appeal to the prurient interest to distinguish it from materials whose primary purpose is literary, artistic, political or scientific value.

As to the overbreadth challenge (for example, that the condition applied to computers at work he had to use, but had no control over), the appellate court stated that it had no ruling on this, as the vagueness challenge made any overbreadth challenge moot.