8th Circuit affirms supervised release condition banning legal child nudity

In United States v. Kelly, 2012 U.S. App. LEXIS 9225 (8th Cir. 2012), the Eight Circuit held that a special condition of supervised release prohibiting the defendant from possessing photographic depictions of nude children was not unconstitutionally overbroad.

The defendant had been convicted of being a felon in possession of a firearm. The sentencing court found that he was a "sexual predator" based on his criminal history and ordered the following condition:

The Defendant shall neither possess nor have under his control any material, legal or illegal, that contains child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity.

On appeal, the defendant argued that the provision violates his First Amendment rights as it might prohibit works "such as Raphael's 'Madonna with the Christ Child.'" The Eighth Circuit disagreed, holding that "viewing photographic depictions of child nudity would undermine [the defendant's] rehabilitative process" and affirmed.

A dissenting opinion by Judge Bye argued that the ban of "'legal' child nudity," materials which would "be completely innocuous and wholly lacking in any prurient interest," was not supported by a particularized showing. The dissent also discussed the defendant's criminal history which dealt with the sexual assault of post-pubescent females.