The Supreme Court decision in Massachusetts v. Oakes, 491 U.S. 576 (1989), vacated and remanded a decision by the Supreme Judicial Court of Massachusetts overturning a conviction under a state law that criminalized photographing a child younger than age 18 years in a state of nudity.

The law was applied to a stepfather, Douglas Oakes, who had been sentenced to 10 years in jail for taking pictures of his partially nude 14-year-old daughter, who was in modeling school. Oakes was convicted of violating a Massachusetts statute prohibiting adults from exhibiting minors in a “state of nudity” for visual reproduction. The state supreme court reversed the conviction on First Amendment grounds. The case then proceeded to the U.S. Supreme Court. After the Court granted review, the state amended the statute by adding a “lascivious intent” requirement to the anti-nudity statute.

Justice Sandra Day O’Connor wrote the judgment for the Court and was joined by Chief Justice William H. Rehnquist and Justices Byron R. White and Anthony M. Kennedy. O’Connor focused on the argument that the law was overly broad, observing, “The First Amendment 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.” In Bigelow v. Virginia (1975), the Court had established that such analysis was inappropriate in cases in which a challenged law had been “amended or repealed.” Because the “lascivious intent” requirement had been added, it could not chill protected expression and the overbreadth claim was now moot. This left it to the Massachusetts court to decide on the as-applied challenge.

In a partial concurrence and partial dissent written by Justice Antonin Scalia and joined in part by Justices William J. Brennan Jr. and Thurgood Marshall, Scalia thought it odd that “a conviction initially invalid can be resuscitated by a postconviction alteration of the statute under which it was obtained.” Scalia did not, however, believe that the law was overly broad. He observed that the law already had exceptions for scientific, medical, educational, and cultural purposes. All that remained would be family photos of naked toddlers, and Scalia thought the court could deal with such cases as they arose, which he thought would be infrequently.

Justice Brennan wrote a separate dissent, joined by Marshall and John Paul Stevens. Although Brennan acknowledged the states’ ability to regulate child pornography, he thought the law was overly broad and invalid because it applied to nude exhibits of children, even when they were not participating in sexual conduct. Because he thought family photos of nude children were fairly common, he believed the law needed to be overturned on its face. Had Massachusetts chosen, it could have limited the law to “lewd exhibition of the genitals,” but it had not done so. Brennan argued that the law as written contravened the Court’s distinction between mere nudity and pornography that it had established in Erznoznik v. City of Jacksonville (1975).

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