

Opinion issued November 10, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NOS. 01-11-00020-CR
———————————
john
christopher lo,
Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 248th District Court
Harris County, Texas

Trial Court Case No. 1276551
 

 
O P I N I O N
Appellant,
John Christopher Lo, challenges the order of the trial court denying him the
relief that he requested in his application for writ of habeas corpus.  In three points of error, appellant contends
that the Texas Penal Code provision prohibiting the online solicitation of a
minor[1] is overbroad and vague and,
thus, facially invalid, and violates the Dormant Commerce Clause.[2]   
We affirm.
Background
          A
Harris County Grand Jury has issued a true bill of indictment, accusing
appellant of the felony offense of online solicitation of a minor and alleging
that on October 31, 2009, he, “unlawfully with the intent to arouse and gratify
[his] sexual desire . . . , intentionally communicate[d] in a sexually explicit
manner with F.B., an individual whom [appellant] believed to be younger than 17
years of age, by text message and that [appellant] was at that time more than
17 years of age.”[3]  
          In
response, appellant filed a pretrial application for writ of habeas corpus and
motion to quash the indictment, asserting that the Texas Penal Code’s
prohibition of such communications is “unconstitutional on its face under the
First Amendment as it is a content based restriction that severely criminalizes
a substantial amount of harmless speech between adults that is protected under
the First Amendment” and it is “not narrowly tailored to promote a compelling
state interest as it prohibits a substantial amount of protected speech that is
unnecessary to the protection of children.” 
Appellant also argued that the language used in the Penal Code’s
prohibition is “unconstitutionally vague under the First Amendment because it
works to encompass a vast array of communications and will chill the exercise
of free speech.”  Appellant further
argued that the Penal Code’s prohibition violates the Dormant Commerce Clause
“because it unduly burdens interstate commerce by attempting to place
regulations on the entirety of the Internet.” 
          In
its response to appellant’s application, the State, in regard to appellant’s
overbreadth challenge, asserted that “the legitimate goal” of the Penal Code’s
prohibition far exceeds any potential unlawful applications,” the “prevention
of sexual exploitation and abuse of children . . . constitutes a government
objective of surpassing importance,” and appellant had not shown that the
“overbreadth of the online solicitation statute [is] substantial.”  The State, in regard to appellant’s vagueness
challenge, asserted that the statute “contemplates a person directing his
conduct toward a specific individual” and the statue “is very specific.”  Finally, in regard to appellant’s Dormant
Commerce Clause argument, the State asserted that the statute is “narrowed by
the intent element and the requirement that the defendant believe a specific
person is a minor.”  The State also noted
that “any burden on interstate commerce is incidental, at best.”  The trial court denied appellant the relief that
he requested in his application and refused to dismiss the criminal charge
against him. 
Standard of Review
We review the constitutionality of
a criminal statute de novo as a question of law. Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d).  When presented with a
challenge to the constitutionality of a statute, we presume that the statute is
valid and the legislature has not acted unreasonably or arbitrarily.  Rodriguez
v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).  The party challenging the statute carries the
burden to establish its unconstitutionality. 
Id.  We must uphold the statute if we can apply a
reasonable construction that will render it constitutional.  Ely v.
State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979); see also Maloney, 294 S.W.3d at 626 (stating that if statute can be
interpreted in two different ways, one of which sustains its validity, we apply
interpretation that sustains its validity). 
When an appellant challenges a statute as both unconstitutionally
overbroad and vague, we address the overbreadth challenge first.  Village
of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494–95, 102 S. Ct. 1186, 1191 (1982); Maloney, 294 S.W.3d at 626.
Constitutional Challenges
In his three points of error, appellant
argues that the trial court erred in denying him the relief that he requested
in his application and in not dismissing the criminal case against him because
the language of Texas Penal Code section 33.021, which prohibits the “[o]nline
solicitation of a minor,” is overbroad and vague and, thus, facially invalid,
and violates the Dormant Commerce Clause. 
See Texas Penal
Code Ann. § 33.021
(Vernon 2011).
We note that the State “questions whether this complaint
should have been brought up on direct appeal, rather than a pretrial
application of writ of habeas corpus.” 
However, a party may file a pretrial application for writ of habeas
corpus to assert a facial challenge to the constitutionality of a statute.  See Ex
Parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).
Section 33.021(b) provides,
A person who is 17 years of
age or older commits an offense if, with the intent to arouse or gratify the
sexual desire of any person, the person, over the Internet, by electronic mail
or text message or other electronic message service or system, or through a
commercial online service, intentionally:
 
(1)
    communicates in a sexually explicit
manner with a minor; or 
 
(2)
    distributes sexually explicit material
to a minor.
 
Tex. Penal Code Ann. §
33.021(b).  “Minor” is defined to mean
“an individual who represents himself or herself to be younger than 17 years of
age” or “an individual whom the actor believes to be younger than 17 years of
age.”[4]  Id.
§ 33.021(a)(1).  “Sexually explicit” is
defined to mean “any communication, language, or material, including a
photographic or video image, that relates to or describes sexual conduct, as
defined by Section 43.25.”  Id. § 33.021(a)(3).  “Sexual conduct” is defined to mean “sexual
contact, actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the
genitals, the anus, or any portion of the female breast below the top of the
areola.”  Id. § 43.25 (Vernon Supp. 2011).
Overbreadth Challenge
          In
his first point of error, appellant argues that section 33.021(b) is
unconstitutionally overbroad in violation of the First Amendment because “simple
profanity or vulgarity—not rising to the level of obscenity—is constitutionally
protected speech,” the government may not lawfully prohibit the “sexually
explicit communications that are criminalized” by the statute, the statute
“prohibits non-obscene communications by adults,” and the statute is not
“narrowly tailored.”  Appellant asserts
that the “scope of the speech encompassed by the statute is staggering” and
that the breadth of the statue creates the potential for abuse.  Appellant also asserts that the statute could
be applied in a multitude of situations because the term “sexually explicit” is
broadly defined, the statute is “not limited to personal conversations,” and
the statutory “intent to arouse” could simply be inferred “in many cases.”
A statute is facially invalid for
overbreadth if it prohibits a substantial amount of protected speech.  U.S. v.
Williams, 553 U.S. 285, 292 128 S. Ct. 1830, 1838 (2008); see also Scott v. State, 322 S.W.3d 662,
665 (Tex. Crim. App. 2010) (“A statute may be challenged as overbroad, in
violation of the Free Speech Clause of the First Amendment, if, in addition to
proscribing activity that may be constitutionally forbidden, it sweeps within
its coverage a substantial amount of expressive activity that is protected by
the First Amendment.”).  The
overbreadth doctrine “seeks to strike a balance between competing social
costs.”  Williams, 553 U.S. at 292, 128 S. Ct. at 1838.  “On the one hand, the threat of enforcement
of an overbroad law deters people from engaging in constitutionally protected
speech, inhibiting the free exchange of ideas,” while on the other,
“invalidating a law that in some of its applications is perfectly
constitutional—particularly a law directed at conduct so antisocial that it has
been made criminal—has obvious harmful effects.”  Id.
To maintain the appropriate balance, courts have required that “a statute’s
overbreadth be substantial, not only
in an absolute sense, but also relative to the statute’s plainly legitimate
sweep.”  Id.; see also U.S. v. Stevens,
130 S. Ct. 1577, 1587 (2010) (stating that law may be invalidated as overbroad
if “a substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep”) (citations omitted).  “Invalidation for overbreadth is strong
medicine that is not to be casually employed.” 
Williams, 553 U.S. at 292, 128
S. Ct. at 1838 (citations omitted). 
Accordingly, we will not invalidate a statute for overbreadth merely
because it is possible to imagine some unconstitutional application.  In re
Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d); see also Maloney, 294 S.W.3d at 626.
The first step in considering an
overbreadth challenge “is to construe the challenged statute; it is impossible
to determine whether a statute reaches too far without first knowing what the
statute covers.”  Williams, 553 U.S. at 293, 128 S. Ct. at 1838. 
Section 33.021(b) criminalizes the conduct of an adult, seventeen years
of age or older, who, with the intent of arousing or gratifying the sexual
desire of any person, uses an electronic message or online service to
intentionally communicate in a sexually explicit manner with a minor or
distribute sexually explicit material to a minor.    
Section 33.021(b) includes a scienter requirement that
applies to each element of the offense. 
First, and most importantly, to commit an offense, the adult must have
the intent to arouse or gratify a
sexual desire.  This includes, as
illustrated in this case, the sexual desire of the adult directing the sexually
explicit communication or material to the minor.  This element narrows the statute to target
only those who engage in sexually explicit communications with minors or who
distribute sexually explicit materials to minors with the specific intent of
arousing or gratifying a sexual desire.[5]  See Vasquez
v. State, No. 05-06-00486-CR, 2007 WL 1054146, at *3 (Tex. App.—Dallas
2007, pet. ref’d) (mem. op.) (affirming constitutionality of statute
criminalizing “improper photography or visual recording” that required specific
intent to arouse or gratify sexual desire of any person; concluding that plain
language of statute narrowed prescribed conduct); State v. Calvo, No. 08-05-00002-CR, 2006 WL 2634733, at 2–3 (Tex.
App.—El Paso 2006, pet. ref’d) (noting that statute criminalizing improper
photography or visual recording “proscribes only that conduct which is done
with the requisite intent to arouse and gratify the sexual desire of any person
and without the complainant’s consent”).
Second, the adult must
intentionally communicate in a sexually explicit manner with a minor or
distribute sexually explicit material to a minor.  This scienter element of intent, as we
interpret the statue, applies both to (1) the actor’s intent to engage in
sexually explicit communication or distribute sexually explicit material and
(2) the actor’s conduct toward the minor who is receiving the communications or
materials.  See Williams, 553 U.S. at
294, 128 S. Ct. at 1839 (affirming constitutionality of statute criminalizing
promotion of child pornography and concluding that “best reading” of statute
applied scienter requirement “to every element” of offense); State v. Stone, 137 S.W.3d 167, 181–82
(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (affirming constitutionality of statute
criminalizing display of “harmful material” to minor and noting that statute
contained scienter requirements “with respect to both the type of material
displayed and the person to whom it is displayed).
Additionally, section 33.021(b) applies only to sexually
explicit communications or materials, and “sexually explicit” is defined as
relating to or describing “sexual conduct,” which is then further defined as
“sexual contact, actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals, the anus, or any portion of the female breast below
the top of the areola.”  Id. § 43.25.  We recognize that this definition differs
from the definition of the term “harmful material” that we previously
considered in reviewing the constitutionality of the statute criminalizing the
sale, distribution, or display of harmful material to a minor.  See
Stone, 137 S.W.3d at 181–82.  As we noted in Stone, the definition of “harmful material” in the Penal Code is consistent
with the constitutional standard for obscenity that, as modified for juveniles,
has been established by the United States Supreme Court.  See id.
at 181; see also Tex. Penal Code Ann. § 43.24 (Vernon
2011) (defining “harmful material” as that which “appeals to the prurient
interest of a minor, in sex, nudity, or excretion,” “is patently offensive to
prevailing standards in the adult community as a whole with respect to what is
suitable for minors,” and “is utterly without redeeming social value for
minors”); Ginsberg v. New York, 390
U.S. 629, 88 S. Ct. 1274 (1968) (affirming constitutionality of statute that
prohibited sale to minors of sexual material deemed harmful to minors that
would be obscene from the perspective of minors).[6]  Although the definition of the term “sexually
explicit” is not identical to that for “harmful material,” the definition is
generally consistent with definitions of “sexually explicit conduct” and
“sexual conduct” that have been used in statutes criminalizing the promotion or
possession of child pornography, and these statutes have been held to be
constitutional.  See Williams, 553 U.S. at 296, 128 S. Ct. at 1840; see also New York v. Ferber, 458 U.S.
747, 751,102 S. Ct. 3348, 3351 (1982) (reviewing constitutionality of statute
that criminalized promotion of sexual performance by child and that defined
“sexual conduct” as “actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals”).  These
cases support the State’s assertion that the Penal Code’s definition of
“sexually explicit,” as used in section 33.021, does not render the statute
overbroad.
No court in our state has yet addressed an overbreadth
challenge to subsection (b) of section 33.021.  
However, this Court has considered, and affirmed, the constitutionality
of subsections (c) and (d) of section 33.021. 
Maloney, 294 S.W.3d at
628.   Subsection (c) provides,
(c)      A person
commits an offense if the person, over the Internet, by electronic mail or text
message or other electronic message service or system, or through a commercial
online service, knowingly solicits a minor to meet another person, including
the actor, with the intent that the minor will engage in sexual contact, sexual
intercourse, or deviate sexual intercourse with the actor or another person.
Tex. Penal Code Ann. § 33.021(c). 
Subsection (d)
provides,
(d)     It is not
a defense to prosecution under Subsection (c) that:
(1)     the meeting did not occur; 
(2)     the actor did not intend for
the meeting to occur; or 
(3)     the actor
was engaged in a fantasy at the time of commission of the offense. 
Id. § 33.021(d).  
In Maloney, the
defendant argued that the statute is overly broad because it prohibits a person
from “engaging in the lawful activity of fantasy” and “impermissibly
restrict[ed] a person’s freedom of expression and thought.”  Id.
at 626–27. We concluded that “the legitimate goal of the statute far exceeds
any potential unlawful application,” and noted that the “prevention of sexual
exploitation and abuse of children addressed by the Texas online solicitation
of a minor statute constitutes a government objective of surpassing
importance.”  Id. at 628.  We also
concluded that any possibility of prosecution of “consenting adults engaging in
role-playing would amount to any more than a ‘tiny fraction’ of all
prosecutions under the statute.”  Id. 
(citing Ferber, 458 U.S. at
773, 102 S. Ct. at 3363; Shaw, 204
S.W.3d at 15).  Accordingly, we held that
any overbreadth of section 33.021 was not substantial when judged in relation
to its plainly legitimate sweep, and, thus, “section 33.021 [was] not
unconstitutionally overbroad.” 
          Other
courts have also considered, and rejected, similar facial challenges to Penal
Code provisions that involve some of the same issues as the instant case.  In Vasquez, the Dallas Court of Appeals considered an overbreadth challenge
to a Penal Code provision criminalizing improper photography or visual
recording.  2007 WL 1054146, at *3.  The
statute in that case, which contains some similar elements to the online-solicitation
statute, provides,    
 A person
commits an offense if the person:
 
(1)    
photographs or by
videotape or other electronic means records, broadcasts, or transmits a visual
image of another at a location that is not a bathroom or private dressing room:

 
(A) without the other person’s consent; and
 
(B)  with intent to arouse or gratify the sexual desire of
any person[.]
 
Tex. Penal Code Ann. § 21.15(b). 
The defendant in Vasquez
argued that the statute is unconstitutionally overbroad because it embraces “a
substantial amount of protected activity and expression.”  Vasquez,
2007 WL 1054146, at *3.  In support of his argument, he asserted
that the “commonness of cameras and videocameras” and the application of the
statute to conduct in a public forum results in reaching “a substantial amount
of potentially protected conduct.”  Id.  The
court disagreed, noting that the defendant’s examples of protected conduct
“merely reflect[ed] instances where it is possible to imagine some
unconstitutional applications” of the statute. 
Id.  Focusing on the narrowing elements of the
statute, the court concluded that it did not reach “a substantial amount of
protected conduct.”  Id.
          In Shaw,
the Texarkana Court of Appeals considered an overbreadth challenge to section
21.12 of the Penal Code, which prohibits sexual contact or relations between
employees of primary or secondary schools and students.  204 S.W.3d at 14–15.  In Shaw,
the defendant asserted that the statute is overbroad because it applies to all
school employees and students regardless of age and, as such, it infringed on
her “liberty interest to engage in private sexual conduct between consenting
adults.”  Id.  The court, noting that
the record contained no data about “what percentage of secondary school
students affected by this statute are adults” and there was no evidence
demonstrating that the statue reached “a substantial amount of constitutionally
protected conduct,”’ held that the statute was not overly broad “when judged in
relation to the statute’s plainly legitimate sweep.”  Id.

          Here, as in Maloney, we conclude that the legitimate goal of section 33.021,
including subsection (b), far exceeds any potential unlawful applications of
the statute.  The prevention of sexual
exploitation of children, which is addressed by the entirety of this statute,
is of “surpassing importance.”  294
S.W.3d at 628.  Moreover, there is no
evidence in the record before us that the statue reaches “a substantial amount
of constitutionally protected conduct.” 
Appellant cites as an example of protected conduct to which he believes
this statute could reach, a situation in which a father jokingly forwards “a
photo of a topless woman and a message” to his sixteen year old son saying,
“Hope this brightens your day!’”  He also
cites as an example a person posting such a photo in a large Internet forum,
such as Facebook, that may reach a minor. 
However, these examples merely reveal
that it is possible to imagine some potentially overbroad applications of the
statute.  See Williams, 553 U.S. at
303, 128 S. Ct. at 1844.  These
hypothetical scenarios do not render the statute overbroad.  Moreover, the scope of the statute is
narrowed by the statutory requirement that the defendant must have (1) the
intent to sexually arouse or gratify a person (here, the adult himself), (2)
the intent to furnish sexually explicit communications and materials, and (3)
the intent to direct those communications or materials to a minor.  Accordingly, we hold that section 33.021(b)
is not facially invalid for overbreadth.
          We overrule appellant’s first point of
error.
Vagueness Challenge
In his second point of error, appellant
argues that section 33.021(b) is unconstitutionally vague in violation of the
First Amendment because the definition of “sexually explicit” is “highly
problematic” and “makes no sense.” 
Appellant notes that the Texas Legislature has incorporated within the
definition of “sexually explicit” the term “sexual conduct” as used in section
43.25 of the Penal Code.  He asserts that
a prohibited communication could include “anything from the word ‘breast’ to a
picture of a swimsuit” or a commercial advertisement for jeans.  Appellant further asserts that the “intent to
arouse” element creates no real limit to the statute and “the danger of
arbitrary enforcement is real” because Texas law permits a jury to infer intent
from the circumstances.
In the First Amendment context, a party
may make a facial challenge to a statute that is based upon vagueness,
contending that it is unclear whether the statute regulates a substantial
amount of protected speech.  Williams, 553 U.S. at 304, 128 S. Ct. at
1845; see also State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006)
(stating that vagueness doctrine requires that penal statute define offense
with sufficient definiteness that ordinary people can understand what conduct
is prohibited and in manner that does not permit arbitrary and discriminatory
enforcement).  However, “perfect clarity
and precise guidance have never been required even of regulations that restrict
expressive activity.”  Williams, 553 U.S. at 304, 128 S. Ct. at
1845.  “The mere fact that close cases
can be envisioned” does not render a statute vague.   Id.  “What renders a statute vague is not the
possibility that it will sometimes be difficult to determine whether the
incriminating fact it establishes has been proved; but rather the indeterminacy
of precisely what that fact is.”  Id. at 306, 128 S. Ct. at 1846.
Here, section 33.021 defines “sexually
explicit” communications and, materials, and although the statute does not tie
the definition of the term “sexually explicit” directly to the definition of “obscenity”
as used in the Texas Penal Code or the variant definition of “obscenity for
minors” that has been approved by the United States Supreme Court, the statute
does use language that is both closely related to these definitions and that
has been approved in cases in similar contexts. 
See Williams, 553 U.S. at 296, 128 S. Ct. at 1840; see also Ferber, 458 U.S. at 751, 765, 102 S. Ct. at 3351, 3359; Ginsberg, 390 U.S. at 645–46, 88 S. Ct.
at 1284; Stone, 137 S.W.3d at 180–81.
Section 33.021 also requires that a defendant intentionally make sexually
explicit communications or distribute sexually explicit materials to a minor
with the intent to arouse or gratify the sexual desire of any person, including
the defendant.  
We conclude that section 33.021(b) is sufficiently clear to
provide adequate notice of what conduct constitutes a criminal offense.  See
Maloney, 294 S.W.3d at 629. 
Accordingly, we hold that section 33.021(b) is not facially invalid for
vagueness.  
We overrule appellant’s second point of error.
Dormant Commerce Clause Challenge
          In his third point of error, appellant
argues that section 33.021(b) violates the Dormant Commerce Clause because it
“unduly burdens interstate commerce by attempting to place regulations on the
entirety of the Internet.”  Appellant
relies, in part, upon the following passage from American Libraries Ass’n v. Pataki: 

[T]he Internet is one of those areas of
commerce that must be marked off as a national preserve to protect users from
inconsistent legislation that, taken to its most extreme, could paralyze
development of the Internet altogether. Thus, the Commerce Clause ordains that
only Congress can legislate in this area, subject, of course, to whatever
limitations other provisions of the Constitution (such as the First Amendment)
may require.
969
F.Supp. 160, 169 (S.D.N.Y. 1997).  Appellant
complains that “Texas’s attempt to regulate online speech has the effect of
restricting protected speech around the country and even the globe.” 
However, the Commerce Clause does not preclude states from
enacting statutes that, like the one at issue here, criminalize the online
solicitation of minors.  Multiple courts
from other states have considered, and rejected, complaints nearly identical to
appellant’s Commerce Clause argument in this case.  See
State v. Colosimo, 142 P.3d 352, 356 (Nev. 2006); People v. Foley, 709 N.Y.S.2d 467, 477, 731 N.E.2d 123, 133 (2000);
State v. Snyder, 155 Ohio App. 3d
453, 467, 801 N.E.2d 876, 887 (2003); Hatch
v. Superior Court, 80 Cal. App. 4th 170 (Cal. App. 4th Dist. 2000).  As noted above, section 33.021(b) criminalizes the conduct of an adult who, with the
specific intent of arousing or gratifying a sexual desire, and with the use of
electronic messaging or online services, intentionally communicates in a
sexually explicit manner with a minor or distributes sexually explicit material
to a minor.  Id. § 33.021(b).  The
statute includes a scienter requirement for each element of the offense.   It is clearly targeted at criminalizing the
conduct of adults who engage in sexually explicit communications or distribute
sexually explicit material to minors for gratifying a sexual desire.  “It is difficult to conceive of any
legitimate commerce that would be burdened by penalizing” the conduct targeted
by Texas’ online solicitation of a minor statute.  Colosimo,
142 P.3d at 357.  Accordingly, we hold
that the statute does not violate the Commerce Clause.  
We overrule appellant’s third point of error. 
Conclusion
          We
affirm the order of the trial court.
 
 
                                                                   Terry
Jennings
                                                                   Justice

 
Panel
consists of Justices Jennings, Sharp, and Brown.
Publish.   Tex. R. App. P. 47.2(b).
 




[1]           See
Tex. Penal Code Ann. § 33.021(b)
(Vernon Supp. 2011).
 


[2]           U.S.
Const., art. I, § 8, cl. 3.
 


[3]           See
Tex. Penal Code Ann. §
33.021(b).


[4]
          It is a defense to prosecution
under section 33.021(b) that, at the time criminal conduct was committed, the
“actor was married to the minor” or “was not more than three years older than
the minor and the minor consented to the conduct.”  Id.
§ 33.021(e).


[5]
          We note that the language
requiring the specific
intent of arousing or gratifying a sexual desire is consistent with the
criminal offense of indecency with a child. 
See Tex. Penal Code Ann. § 21.11(a) (emphasis added) (providing
that person commits offense of indecency with child if person, “with intent to arouse or gratify the sexual
desire of any person: (A)  exposes
the person’s anus or any part of the person’s genitals, knowing the child is
present;  or (B)  causes the child to expose the child’s anus
or any part of the child’s genitals.”).


[6]
          The statute in Ginsberg defined “harmful to minors” as
the “quality of any description or representation, in whatever form, of nudity,
sexual conduct, sexual excitement, or sadomasochistic abuse, when it: (i)
predominantly appeals to the prurient, shameful or morbid interest of minors,
and (ii) is patently offensive to prevailing standards in the adult community
as a whole with respect to what is suitable material for minors, and (iii) is
utterly without redeeming social importance for minors.”  Ginsberg
v. New York, 390 U.S. 629, 645–46, 88 S. Ct. 1274, 1284 (1968).
 


