Improper Photography Vague

 Improper Photography §25.15(b)(1) is Vague
The 3 ways in which a law may be considered vague was established in Grayned v. City of Rockford, 408 US 104, 108 (1972).  A law is vague;
    (a) If it fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited
    (b) If it delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application
    © If, where the statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms

§25.15(b)(1) is Vague because it requires law enforcement officers and others to make personal, subjective judgments about 1st amendment speech. Exhausting the myriad ways this law could be misapplied could be the subject of an interesting Harvard University philosophical debate. Are men only aroused by women underwear? How about breasts, legs, butts, eyes etc? Are law enforcement officers experts in people’s sexual fetishes? If not, is the law discriminatory towards heterosexual males?…….you get the philosophical drift.

The Supreme Court has traditionally been very antagonistic to vague laws that raise 1st amendment issues. The reason is Vague laws that touch on speech have the unintended consequence of making people censor themselves unnecessarily. This point always missed here is that in the eyes of the Supreme Court, that chilling effect on speech is more important than how some prosecutor chooses to apply the statute. The mere fact that the law exists and people are aware of it is problematic enough. A photographer for example, aware of this law will steer far clear of the danger zone in order to avoid the serious consequences that flow from an arrest or conviction of a felony sex crime. In Reno v. ACLU, the Court noted the special concern with which it reviews vague laws that affect speech
    “Regardless of whether the CDA (Communications Decency Act) is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment…Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality…or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of the violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater First Amendment concerns than those implicated by civil regulation…” Reno v. ACLU, 521 US 844,874 (1997)
        Like the CDA, §25.15(b)(1) is a vague law that affects free speech and comes with severe criminal penalties. There is no reason to believe that it will suffer a different fate.
    “A law imposing criminal penalties on protected speech is a stark example of speech suppression.” Ashcroft v. Free Speech Coalition, 535 US 234 (2002)