No First Amendment Protection for Videos Played in Your Vehicle

On October 15, 2019, the Appellate Division in State v. Lomato (Dkt. No. A-5273-16T4) approved a “public communication of obscenity” conviction for a man convicted of watching pornography in his car outside a fast food restaurant. Specifically, defendant was accused of watching pornography on an iPad through the restaurant’s wifi, loudly, with the windows down, and with at least one child around. Among other arguments, the defendant challenged the law for being vague and overbroad and had the potential to punish people who merely stumbled upon obscene material.

The Appellate Division, however, disagreed, concluding that the statute, N.J.S. 2C:34-4, was not a trap likely to “ensnare” the unwary. Specifically, since the statute is written so only to apply to those who “knowingly publicly communicate[] obscene material,” it could not “ensnare[] individuals who inadvertently communicate obscene material while engaged in a private viewing of those materials.” The sentence—for probation and five days of “time served” jail time—was therefore affirmed. The Court further rejected the defendant’s privacy argument, among others, as courts have “never extended the zone of privacy to what occurs inside a car that is in plain view.”

Interesting, however, is that although the defendant chose to focus his appeal on the “communicates” element of the statute, he might have also challenged the “obscene material” element of his crime. This is because “obscene material” under this statute actually refers to a heightened standard for obscenity—specifically, “obscenity for persons under 18” under N.J.S. 2C:34-3—and not the standard definition of obscenity at N.J.S. 2C:34-2. Because the Appellate Division specifically noted that “[t]here was no evidence that the boy saw or heard any pornography,” it is unclear whether this more stringent definition of “obscenity” was properly applied to the defendant’s case. See Butler v. Michigan, 352 U.S. 380, 383 (1957); State v. Seigel, 139 N.J. Super. 373, 382 (App. Div. 1975).

If you have further questions, or have additional questions about a criminal matter, please contact us for a free consultation with a criminal law attorney.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.

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