Antonin Scalia

“ We have no choice but to accept these authoritative pronouncements in adjudging the validity of § 29A.
The test we employ is familiar. Because "conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." ”

“ Because § 29A's prohibition extends to posing or exhibiting children "in a state of nudity," rather than merely to their participation in live or simulated sexual conduct, the statute clearly restrains expression within the ambit of the First Amendment.
It is equally evident that the Commonwealth's asserted interest in preventing the sexual exploitation and abuse of minors is "of surpassing importance." ”

“ The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact. ”

“ Many of the world's great artists-De as, Renoir, Donatello, [4] to name but a few-have worked from models under 18 years of age, and many acclaimed photographs and films have included nude or partially clad minors. [5] The First Amendment rights of models, actors, artists, photographers, and filmmakers are surely not overborne by the Commonwealth's interest in protecting minors from the risk of sexual abuse and exploitation, especially in view of the comprehensive set of laws targeted at those evils. ”

“ Amicus American Sunbathing Association, a nudist organization with 30,000 members in the United States and Canada, further notes that family photographs taken by its members would subject them to possible prosecution, notwithstanding the protected character of their activity and their denial of any intrinsic connection between public nudity and shame. ”

“ One can also readily adduce actual examples of protected conduct within § 29A's compass. Parents photograph their children without abusing them sexually in Massachusetts as elsewhere. Th arts flourish there. Four nudist clubs affiliated with the American Sunbathing Association alone have been established in the Commonwealth, Brief for American Sunbathing Association as Amicus Curiae 2, and there may well be others.
The only question that might give one pause is whether the statute's overbreadth is substantial. ”

“ When one takes account of those overbroad statutes that are never challenged, and of the time that elapses before the ones that are challenged are amended to come within constitutional bounds, a substantial amount of legitimate speech would be "chilled" as a consequence of the rule Justice O'CONNOR would adopt. ”

“ The Commonwealth lacks an overriding interest, however, in prohibiting adults from allowing minors to appear naked in photographs, films, and pictures with their genitals or, in the case of adolescent girls, their breasts less than opaquely covered under all circumstances except the production of such works "for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library." ”

“ In that case, which similarly involved both a facial and an as-applied challenge to a statute that had been amended postconviction, the Court said:↑ Justice BRENNAN evidently believes that the State cannot bar the use of children for nude modeling without reference to "the adult's intentions or the sexually explicit nature of the minor's conduct." Post, at 597. That is not unquestionably true. Most adults, I expect, would not hire themselves out as nude models, whatever the intention of the photographer or artist, and however unerotic the pose. ”

“ Accordingly, I join Part I of Justice SCALIA's opinion holding that a defendant's overbreadth challenge cannot be rendered moot by narrowing the statute after the conduct for which he has been indicted occurred-the only proposition to which five Members of the Court have subscribed in this case.↑ See, e.g., R. Thomson, Degas, The Nudes 40-53, 119-125 (1988) ”