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In cases involving both "speech" and "nonspeech" elements, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitation on First Amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376 (1968) (conviction of draft card burner upheld). See United States v. Albertini, 472 U.S. 675, 687-689 (1985). There is at least a substantial question whether an important governmental interest would warrant overriding First Amendment freedoms in this case. In their own home, the defendant took nonpornographic, nonobscene photographs of his fifteen year old, consenting stepdaughter who was nude above the waist, in circumstances where no commercial or even noncommercial distribution was intended or occurred.


The only real question in this case is whether soliciting, causing, encouraging, or permitting a child to pose nude (within the definition of nudity in G. L. c. 272, Section 31) is a form of speech calling for First Amendment analysis. More specifically, the question is whether the possible overbreadth of the statute is a relevant consideration in the decision of this case. The question of overbreadth is irrelevant if soliciting, causing,


Indeed, pictures, when displayed or disseminated, talk. It does not follow, however, that soliciting, causing, encouraging, or permitting someone to pose for a photograph is itself speech or is so inextricably bound up with the display or dissemination of a photograph that, for constitutional purposes, it must be treated as speech. As the court emphasizes, "no commercial or even noncommercial distribution was intended or occurred" in this case. The photographs were not designed to communicate, and the statute, focusing entirely on the adverse effect on the child of posing for nude photographs, irrespective of whether the photographs are ever shown to anybody, is entirely neutral with respect to communication. [Note Dissent-2] The conduct proscribed by Section 29A, then, is only conduct, and not speech, and the overbreadth analysis engaged in by the court is inappropriate.


It was in the context of discussing conduct that directly, immediately, and standing alone conveys a message, and is intended to do so, that Henkin wrote the sentences that the court quotes, ante at 604: "A constitutional distinction between speech and conduct is specious. Speech is conduct, and actions speak" (emphasis in original). In context, it is clear that Henkin's point was that there is no valid constitutional distinction between the articulation of words and other conduct used to express an idea. As Henkin wrote, "[T]he meaningful constitutional distinction is not between speech and conduct, but between conduct that speaks, communicates, and other kinds of conduct. If it is intended as expression, if in fact it communicates, especially if it becomes a common comprehensible form of expression, it is `speech.'" Id. at 79-80. Burning a draft card to express displeasure with government conduct or policy and picketing constitute conduct that speaks. However, soliciting, causing, encouraging, or permitting a child to pose nude is not intended as expression; it does not communicate; it is not "a common comprehensible form of expression." Nothing in Henkin's article even remotely suggests that all conduct should be viewed as speech or that the type of conduct involved in this case is speech.


Comparison of the blood radioactivity accumulationof 99mTc-P6D-RGD2, 99mTc-P6G-RGD2, and 99mTc-3P-RGD2 in the athymic nudemice bearing U87MGglioma xenografts to illustrate the impact of linkers (D3 versus G3 and PEG4) between the two c(RGDfK)moieties on blood clearance kinetics of 99mTc-labeled cyclicRGD peptide dimers.


Direct comparison ofthe selected 5 min (A) and 60 min (B) biodistributiondata between 99mTc-P6D-RGD2, 99mTc-P6G-RGD2, and 99mTc-3P-RGD2 in athymic nudemice bearing U87MG glioma xenografts to illustrate the impact of linkers(D3 versus G3 and PEG4) between thetwo c(RGDfK) moieties on the uptake of 99mTc-labeled cyclicRGD peptide dimers in tumor and normal organs.


Selected 60 min biodistribution (A) and planar imaging (B) datafor 99mTc-P6D-RGD2 in the athymic nude micebearing U87MG human glioma xenografts with/without coinjection ofRGD2 (350 μg/mouse or 14 mg/kg) to demonstrate itsintegrin αvβ3 specificity. Yellowarrows indicate the presence of U87MG glioma tumors.


The only real question in this case is whether soliciting, causing, encouraging, or permitting a child to pose nude (within the definition of nudity in G.L.c. 272, 31) is a form of speech calling for First Amendment analysis. More specifically, the question is whether the possible overbreadth of the statute is a relevant consideration in the decision of this case. The question of overbreadth is irrelevant if soliciting, causing, *607 encouraging, or permitting a child to pose for photographs is not "speech" within the context of the First Amendment. New York v. Ferber, supra at 767-768. Broadrick v. Oklahoma, 413 U.S. 601, 610-612 (1973). Of course, the resolution of the question whether the prohibited conduct is also speech cannot properly be influenced by one's enthusiasm or lack of enthusiasm about the public interest involved.


Indeed, pictures, when displayed or disseminated, talk. It does not follow, however, that soliciting, causing, encouraging, or permitting someone to pose for a photograph is itself speech or is so inextricably bound up with the display or dissemination of a photograph that, for constitutional purposes, it must be treated as speech. As the court emphasizes, "no commercial or even noncommercial distribution was intended or occurred" in this case. The photographs were not designed to communicate, and the statute, focusing entirely on the adverse effect on the child of posing for nude photographs, irrespective of whether the photographs are ever shown to anybody, is entirely neutral with respect to communication.[2] The conduct proscribed by 29A, then, is only conduct, and not speech, and the overbreadth analysis engaged in by the court is inappropriate.


It was in the context of discussing conduct that directly, immediately, and standing alone conveys a message, and is intended to do so, that Henkin wrote the sentences that the court quotes, ante at 604: "A constitutional distinction between speech and conduct is specious. Speech is conduct, and actions speak" (emphasis in original). In context, it is clear that Henkin's point was that there is no valid constitutional distinction between the articulation of words and other conduct used to express an idea. As Henkin wrote, "[T]he meaningful constitutional distinction is not between speech and conduct, but between conduct that speaks, communicates, and other kinds of conduct. If it is intended as expression, if in fact it communicates, especially if it becomes a common comprehensible form of expression, it is `speech.'" Id. at 79-80. Burning a draft card to express displeasure with government conduct or policy and picketing constitute conduct that speaks. However, soliciting, causing, encouraging, or permitting a child to pose nude is not intended as expression; it does not communicate; it is not "a common comprehensible form of expression." Nothing in Henkin's article even remotely suggests that all conduct should be viewed as speech or that the type of conduct involved in this case is speech.


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