concurring.
I write separately to explain in more detail why I agree with my colleagues that the phrase "sexually explicit material" (which is found in Conditions 18, 14, and 15 of Dioree's *419special conditions of probation) is constitutionally flawed.
Special Condition 18 prohibits Dioree from possessing "any sexually explicit material"a phrase which, according to Condition 13,
includes but is not limited to child erotica, sexually graphic anime [and] adult ... pornography[.]
Condition 18 further states that this prohibition applies to (1) books, magazines, and any other printed matter, as well as (2) movies and videos, and (8) any electronic device that can hold sexually explicit material in visual or aural form-for example, an e-reader.
Special Condition 14 prohibits Dioree from entering "any establishment whose primary business is the sale of sexually explicit material". And Special Condition 15 requires Dioree to "submit to a warrantless, noneon-sensual search of his residence or any vehicle under his control, [as well as any] personal computer and/or any item which has Internet connectivity (e., X-Box, cell phone, [Plalim [Plilots, Blackberries, etc.) by a Probation Officer for the presence of sexually explicit material." 26
Dioree does not challenge the superior court's authority to prohibit him from possessing child erotica, but he does challenge the prohibition on adult pornography and other undefined types of "sexually explicit material".
Dioree notes that Condition 13 declares that the phrase "sexually explicit material" includes adult pornography, but is not limited to adult pornography. It is therefore reasonable to infer that the superior court intended the phrase "sexually explicit material" to encompass other, undefined types of printed and video material which, although not pornographic, are nevertheless "sexually explicit".
This provision raises two problems under the First Amendment.
The first problem is vagueness. If "sexually explicit material" includes not only pornography but also other "sexually explicit" things, there is a substantial danger that neither Dioree nor his probation officer will have a definite idea of what Probation Condition 13 covers.
The State concedes that several courts from around the country have concluded that, in this context, the term "pornography" is unconstitutionally vague. However, somewhat paradoxically, the State asserts that the phrase "sexually explicit material" is not unconstitutionally vague.
The State's assertion is paradoxical because, as I have just explained, Condition 13 declares that "pornography" is a smaller subset of the broader category of "sexually explicit material". If the term "pornography" is unconstitutionally vague, then it is difficult to see how the phrase "sexually explicit material" could be free of the same improper vagueness. ~
The paradox is resolved when one examines the two court decisions that the State relies on: United States v. Rearden, 349 F.3d 608 (9th Cir.2003), and State v. Bahl, 164 Wash.2d 739, 193 P.3d 678 (2008). In both cases, the courts upheld the phrase "sexually explicit" because that phrase did not stand alone; rather, it was explicitly linked to a more specific and detailed statutory definition.
In Rearden, the sentencing court prohibited the defendant from possessing any materials that depicted "sexually explicit conduct as defined in 18 U.S.C. § 2256(2)". 349 F.3d at 620. The federal statute in question, 18 U.S.C. § 2256(2), defines "sexually explicit conduct" as "(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; (i) graphic or lascivious simulated; (I) bestiality; (IT) masturbation; or (III) sadistic or masochistic abuse; or (Hii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person'".
In Bahl, the Washington Supreme Court engaged in a lengthy discussion whether the terms "pornography" and "sexually explicit" were sufficiently definite to survive a vagueness challenge. 193 P.3d at 686-89. The *420Washington court held that a probation condition prohibiting the defendant from possessing "pornography" was unconstitutionally vague. Id. at 686-88. The court upheld a probation condition that referred to "sexually explicit material", but not in the context of prohibiting the defendant from possessing printed or video material. Rather, the probation condition in question barred the defendant from "[frequenting] establishments whose primary business pertains to sexually explicit or erotic material." Id. at 688-89. Moreover, the Washington court noted that Washington had a statutory definition of "sexually explicit material": RCW 9.68.1830(1) defines "sexually explicit material" as:
any pictorial material displaying direct physical stimulation of unelothed genitals, masturbation, sodomy (i.e., bestiality or oral or anal intercourse), flagellation or torture in the context of a sexual relationship, or emphasizing the depiction of adult human genitals: PROVIDED HOWEVER, That works of art or of anthropological significance shall not be deemed to be within the foregoing definition.
Quoted in Bahl, 193 P.3d at 689.
In Dioree's case, the phrase "sexually explicit material" is not linked to any such limiting or clarifying statutory definition. In fact, according to the wording of Special Condition 13, the phrase "sexually explicit material" is broader than the term "pornography", because this phrase "includes but is not limited to ... pornography". It therefore appears that the phrase "sexually explicit material", as employed in Dioree's conditions of probation, suffers from improper vagueness.
The second problem is overbreadth. If "sexually explicit material" includes not only pornography but also any other printed or video matter that explicitly describes or depicts sexual conduct, then there is a significant possibility that Condition 18 would cover a large proportion of the books and magazines published in this country, as well as a large proportion of the movies, television shows, and video games produced in this country. If that is the case, then a prohibition of this scope seemingly would not be narrowly tailored to Dioree's rehabilitation and/or the protection of the public.
For these reasons, I agree with my colleagues that Special Conditions 18, 14, and 15-all of which incorporate the phrase "sexually explicit material"-must be rewritten.
. The names "X-Box", "Palm Pilot", and '"'Blackberry" are all registered trademarks.