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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2006-549 THE STATE OF NEW HAMPSHIRE v. MARSHALL ZIDEL Argued: June 20, 2007 Opinion Issued: January 18, 2008 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The defendant, Marshall Zidel, appeals his conviction on nine counts of possession of child pornography, see RSA 649-A:3 (2007), arguing that the Superior Court (Lewis, J.) erred in denying his motions to dismiss. We reverse. The following facts were found by the trial court for purposes of ruling upon the defendant's pretrial motion to dismiss or were stipulated to by the parties. At the time he was arrested, the defendant worked as a photographer at a camp in Amherst for children fifteen years old and younger. In that capacity, the defendant took pictures that were to be used to make an end-ofsummer video yearbook or scrapbook for the children attending the camp.

On July 4, 2005, the defendant gave three CD-ROM discs to the camp director. On one of the discs, the director discovered images depicting heads and necks of minor females superimposed upon naked adult female bodies, with the naked bodies engaging in various sexual acts. One image shows an act of sexual intercourse; two images depict a person engaging in or about to engage in cunnilingus; two images depict a person digitally penetrating or touching a female's genitalia; and four images show comparably explicit sexual activity. The defendant and at least one of his family members appear in some of the images. The parties stipulated that, "[o]ther than necks and heads, there is no specific evidence that the images in question contain the body parts of actual children." In addition to these images, the CD-ROMs contained the original non-pornographic camp photographs of the minor females. The camp director identified two of the faces in the images as those of campers from the summer of 2004, who would have been fifteen years old at the time the photographs were taken. He gave the discs to the Amherst Police Department. The parents of all the females involved were able to identify the individuals as girls under sixteen at the time the images were created. When questioned, the defendant told the police that the sexually explicit "photographs were only his `personal fantasy' and that they were not real." The defendant was indicted for possession of child pornography. Before trial, the defendant moved to dismiss, arguing that the prosecution pursuant to RSA 649-A:3, I(e) violated his rights under Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. Following the denial of his motion, the defendant was convicted based upon stipulated facts. On appeal, the defendant argues that the trial court erred in denying his constitutional challenges to RSA 649-A:3. That statute provides, in relevant part, that "[a] person is guilty of a felony if such person . . . (e) Knowingly buys, procures, possesses, or controls any visual representation of a child engaging in sexual activity." RSA 649-A:3, I (2007). The defendant contends that, under both the Federal and State Constitutions, RSA 649-A:3 is facially overbroad, and as applied to his conduct, violates his right to free speech. For purposes of this appeal, although we acknowledge that the images at issue may more properly be characterized as "composite images," see United States v. Rearden, 349 F.3d 608, 613 (9th Cir. 2003) (noting distinction between "composite" and "morphed" images), we adopt the terminology used by the United States Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 242 (2002), and refer to the images in question as "morphed images." Ashcroft, 535 U.S. at 242. As the Supreme Court explained, in contrast to wholly computer-generated images, there is a "more common and lower tech

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means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity." Ashcroft, 535 U.S. at 242. We first address the defendant's as-applied challenge. We review questions of constitutional law de novo. State v. Decato, 156 N.H. ___, ___ (decided December 18, 2007). As noted above, the defendant raises his claims under both the State and Federal Constitutions. Our settled rule is to first address the defendant's claims under the State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only. State v. MacElman, 154 N.H. 304, 307 (2006). Here, however, because United States Supreme Court precedents compel us to hold that criminalizing the defendant's mere possession of the images in question violates his First Amendment rights, and because we are required to follow federal constitutional law, an analysis under the State Constitution is unnecessary. We therefore decide this case under the First and Fourteenth Amendments to the Federal Constitution. "The First Amendment commands, `Congress shall make no law . . . abridging the freedom of speech.'" Ashcroft, 535 U.S. at 244. "As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear." Id. at 245. "[A] law imposing criminal penalties on protected speech is a stark example of speech suppression." Id. at 244. If a statute regulates speech based upon its content, application of the statute is subject to strict scrutiny. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000); see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). This places the burden upon the State to prove that the statute is "narrowly tailored to promote a compelling [state] interest. If a less restrictive alternative would serve the [state]'s purpose, the legislature must use that alternative." Playboy Entertainment Group, 529 U.S. at 813 (citation omitted). The United States Supreme Court has determined that content-based restrictions on certain categories of speech satisfy strict scrutiny, and, thus, are not entitled to absolute constitutional protection. Ashcroft, 535 U.S. at 245-46; see People v. Alexander, 791 N.E.2d 506, 509 (Ill. 2003). This unprotected speech "includ[es] defamation, incitement, obscenity, and pornography produced with real children." Ashcroft, 535 U.S. at 246. Obscenity and child pornography are the two categories relevant here. "The regulation of child pornography was initially rooted in the Supreme Court's obscenity doctrine." United States v. Williams, 444 F.3d 1286, 1290 (11th Cir. 2006). In Miller v. California, 413 U.S. 15 (1973), the Supreme Court reaffirmed that distribution of "obscene material is not protected by the First Amendment," id. at 36, and set forth a standard for determining what

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materials may be regulated as obscenity, id. at 24. Under this standard, "the Government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value." Ashcroft, 535 U.S. at 246 (citing Miller, 413 U.S. at 24). While the government has "broad power to regulate obscenity," the Supreme Court held in Stanley v. Georgia, 394 U.S. 557 (1969), that this "power . . . does not extend to mere possession by the individual in the privacy of his own home." Stanley, 394 U.S. at 568. In so holding, the Court rejected all of Georgia's justifications for banning the mere possession of obscene materials. Id. at 565-68. First, the Court explained that the asserted "right to protect the individual's mind from the effects of obscenity" is "wholly inconsistent with the philosophy of the First Amendment." Id. at 565-66. Second, it rejected Georgia's assertion that "exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence," because there was "little empirical basis for that assertion" and "the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law." Id. at 566-67 (quotation omitted). Third, the Court found that, in a possession case, there is no "danger that obscene material might fall into the hands of children, or that it might intrude upon the sensibilities or privacy of the general public." Id. at 567 (citations omitted). Finally, the Court flatly rejected the argument that "prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution" as a result of "difficulties of proving an intent to distribute or in producing evidence of actual distribution." Id. It found that such difficulties, if they existed, did not "justify infringement of the individual's right to read or observe what he pleases." Id. at 568. Accordingly, the Supreme Court held that "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime." Id. With respect to child pornography, New York v. Ferber, 458 U.S. 747, 764-66 (1982), and Osborne v. Ohio, 495 U.S. 103, 111 (1990), together hold that a state may proscribe the distribution and mere possession of child pornography. Both cases recognized that states have a compelling interest "in safeguarding the physical and psychological well-being of a minor." Ferber, 458 U.S. at 756-57 (quotation omitted); see Osborne, 495 U.S. at 109. In Ferber, the Court relied upon three justifications for a proscription on the distribution of child pornography. First, the Court reasoned, "The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways": (1) "the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation"; and (2) "the distribution network for child pornography must be closed if the production of

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material which requires the sexual exploitation of children is to be effectively controlled." Ferber, 458 U.S. at 759. Second, the Court determined that "[t]he advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation." Id. at 761. Finally, the Court found that "[t]he value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimus." Id. at 762. It noted that if "visual depictions of children performing sexual acts . . . were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative." Id. at 762-63. Accordingly, because "[r]ecognizing and classifying child pornography as a category of material outside the protection of the First Amendment [wa]s not incompatible with [its] earlier decisions," id. at 763, the Court concluded that, generally, "[c]ontent-based restrictions on child pornography satisfy strict scrutiny," Alexander, 791 N.E.2d at 510 (citing Ferber, 458 U.S. at 756-59). The Court noted, however, that there are "limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment." Ferber, 458 U.S. at 763. Thus, "distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection." Id. at 764-65. In Osborne, the Court extended Ferber's holding to allow states to proscribe the mere possession of child pornography. Osborne, 495 U.S. at 111. The Court noted that, in contrast to Stanley, where Georgia "was concerned that obscenity would poison the minds of its viewers," id. at 109 (citation omitted), Ohio did "not rely on a paternalistic interest in regulating Osborne's mind," id. Rather, Ohio proscribed possession of child pornography "to protect the victims of child pornography" by "destroy[ing] a market for the exploitative use of children." Id. Thus, the Court found that "the interests underlying child pornography prohibitions far exceed[ed] the interests justifying the Georgia law at issue in Stanley." Id. at 108. Osborne additionally found that several interests justified Ohio's ban upon the possession of child pornography. First, "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child." Id. at 109. Second, it explained that "penaliz[ing] those who possess and view" child pornography will decrease its production, "thereby decreasing demand." Id. at 109-10. Third, relying upon Ferber, the Court reasoned: "[M]aterials produced by child pornographers permanently record the victim's abuse. The pornography's continued existence causes the child victims continuing harm by haunting the children in years to

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come. The State's ban on possession and viewing encourages the possessors of these materials to destroy them." Id. at 111 (citation omitted). Finally, the Court found that "encouraging the destruction of these materials is . . . desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity." Id. Accordingly, "[g]iven the gravity of the State's interests in this context," the Court held that Ohio could "constitutionally proscribe the possession and viewing of child pornography." Id. In Ashcroft, the Supreme Court declared unconstitutional as overbroad section 2256(8)(B) of the Child Pornography Prevention Act of 1996 (CPPA), see 18 U.S.C.

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