William Brennan

“ 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." ”

“ In my view, the First Amendment also blocks the prohibition of nude posing by minors in connection with the production of works of art not depicting lewd behavior and not specifically prepared, in accordance with § 29A's exclusion, for museums or libraries. Many of the world's great artists-De as, Renoir, Donatello, [2] 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. ”

“ 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." ”

“ 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. ”

“ Mass.Gen.Laws c. 272, § 29A (a) (Supp.1988) . Alternatively, the Commonwealth could have followed the advice offered by the Justice Department in 1977. In considering legislation designed to combat the sexual exploitation of children in photographs and films, the House of Representatives initially considered banning the interstate dissemination, or the taking of photographs with intent or reason to know that they will be transported in interstate commerce, of children in a state of " 'nudity . . . ”

“ The abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots, allows one to say, as the Court said in Houston v. ”