Cinema I Video, Inc. v. Thornburg

Judge BECTON

concurring in part and dissenting in part.

Though mindful of the cardinal principle of statutory interpretation that legislative acts are presumed to be constitutional, and recognizing the power of courts to authoritatively construe legislation consonant with the constitutional standards, I can concur in only part of the majority’s opinion. Specifically, I believe our “Obscene Literature and Exhibition” statute is constitutional even though the language “taken ás a whole” does not appear in N.C. Gen. Stat. Sec. 14490.1(b)(3) (1985), ante pp. 553-554, and even though N.C. Gen. Stat. Sec. 14490.1(d) allows obscenity to be judged with reference to especially susceptible audiences, ante p. 560. Like the majority, I also reject plaintiffs’ arguments that the reference to activities like “excretory functions” and “torture, physical restraint by being fettered or bound, or flagellation by a person clad in undergarments or bizarre costume” makes the statute vague and includes activities that have no sexual connotation whatsoever. See ante p. 562. With regard to our “Sexual Exploitation of Minors” statute, I agree with the majority that N.C. Gen. *573Stat. Secs. 14-190.16 and 14-190.17 “require the exploitation of a live minor to sustain convictions thereunder,” ante p. 566.

Plaintiffs’ other challenges to N.C. Gen. Stat. Sec. 14-190.1 et seq. are meritorious, in my view, and I therefore dissent. I do not question our General Assembly’s authority to address comprehensively the burgeoning and sensitive issues relating to obscenity and sexual exploitation of minors. After all, obscenity is not now, nor has it ever been, considered protected speech under the United States Constitution or the North Carolina Constitution,1 and legislators are expected to respond properly to the felt needs of the electorate. However, the public’s clarion call to eradicate the evils of child pornography and the crass commercialization of obscenity does not obviate the need for prudential judicial review of legislation regarding obscenity and sexual exploitation of minors. And the undergirding purpose supporting this legislation, whether noble or rancorous, cannot justify imposing a unified moral orthodoxy on the public when that purpose can be achieved in a way that does not unduly stifle constitutionally protected speech or press.

Sex and obscenity are not synonymous, Roth, 354 U.S. 476, 487, 1 L.Ed. 2d 1498, 1508, and some sexually explicit material has serious literary, artistic, or scientific value. Consequently, although obscenity is not considered protected speech, statutes regulating obscenity must be narrowly drawn and precisely worded so that otherwise protected expression will not be outlawed or chilled. Even child pornography legislation must limit the proscribed materials to those whose production is physically or psychologically harmful to children, New York v. Ferber, 458 U.S. 747, 760-64, 73 L.Ed. 2d 1113, 1124-27 (1982). “Ceaseless vigilance is the watchword to prevent . . . the States” from eroding the fundamental freedoms of speech and press. Roth, 354 U.S. at 488, 1 L.Ed. 2d at 1509.

*574North Carolina’s statutory scheme to control obscenity and the sexual exploitation of minors is not a paradigm of clarity. Indeed, the trial court in upholding the constitutionality of the challenged statutes, acknowledged, albeit obliquely, the arguably intractable ambiguity of some provisions by stating, on eleven separate occasions in its four-page order, that the statutes “when reasonably construed” are constitutional. Some would question the constitutionality of any statutory scheme that had to be “saved” in so many particulars; however, in my view, even the trial court’s limiting construction did not eliminate all the constitutional infirmities. Believing the statutory scheme still suffers major maladies that require legislative surgery, not judicial patchwork, considering the unquestioned constitutional right to pursue first amendment activities, and seeking scrupulously to observe the dictates of Roth and other first amendment cases, I conclude that the challenged statutes are fatally flawed in the following particulars: (1) N.C. Gen. Stat. Sec. 14-190.1 constitutes a prior restraint of expression because it fails to provide for a prompt adversary hearing and judicial determination of the obscenity of materials retained as evidence; (2) N.C. Gen. Stat. Sec. 14-190.1 sets up a standard of strict liability and does not require knowledge of the content and nature of materials to support a conviction; (3) N.C. Gen. Stat. Sec. 14-190.1 proscribes the private dissemination of obscenity in one’s home; (4) N.C. Gen. Stat. Secs. 14-190.16 and 14-190.17 are overbroad and prohibit the dissemination of material that has no sexual connotation and is not related to the exploitation of minors; and (5) N.C. Gen. Stat. Secs. 14-190.16 and 14-190.17 require no scienter, impose strict liability upon the disseminator of material depicting an individual under eighteen engaging in “sexual conduct,” and create an inference that a person depicted as a minor is a minor.

I

Obscene Literature and Exhibitions Statute

A. Prior Restraint

In 1985 the North Carolina legislature enacted House Bill 1171 which made several major changes to the obscenity laws of North Carolina. One amendment repealed the adversary hearing procedures contained in N.C. Gen. Stat. Sec. 14-190.2, thereby deleting from the statute any mechanism for an adversary hear*575ing either before or after seizure of allegedly obscene material. Consequently, the statute does not allow for a determination of the obscenity of the material short of a jury trial. I agree with the plaintiffs who assert that the “seizure and holding of material allegedly obscene in itself can become a form of censorship.”

Addressing the requirement of a prompt judicial determination of obscenity, the United States Supreme Court in Heller v. New York, stated that a seizure for the bona fide purpose of preserving materials as evidence in a criminal proceeding is constitutionally permissible

[i]f such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party. . . . (Emphasis added.)

413 U.S. 483, 492, 37 L.Ed. 2d 745, 754 (1973). The requirement of an adversary hearing before a seizure allowed one to disseminate suspected obscene material up until the time of the hearing and to substitute equally obscene material for material declared obscene in a prior hearing. That some disseminators therefore avoided prosecution does not justify, however, the North Carolina legislative response which fails to include a mechanism for a prompt post-seizure judicial determination of obscenity.

The majority’s suggestion that, “although a probable cause hearing is not required for a felony charge in superior court, upon request a court could conceivably grant such a request to provide an adversary hearing,” ante p. 564, is too slender a reed to support the prior restraint in this case. The present statutory scheme allows a seizure and a holding of allegedly obscene material and constitutes a form of censorship. What the majority describes as “fictitious-worst case-scenarios,” ante p. 564, represents the reality of the situation, not unfounded fears. A prosecutor who believes certain material is obscene, who has obtained a warrant to seize the obscene material, and who has had the dissemi-nator arrested, is likely to proceed directly to the grand jury for an indictment. Moreover, the final determination on the issue of obscenity at trial may not occur for several months following a disseminator’s arrest. As stated by plaintiffs in their brief, the North Carolina Speedy Trial Act, requiring that a person be *576brought to trial within 120 days of arrest or indictment whichever occurs last, is of minimal aid to a person who is charged with dissemination of allegedly obscene material in the difficult marginal case, and who desires a prompt hearing on the issue of obscenity.

Significantly, the mechanism for a prompt post-seizure judicial determination of obscenity could easily have been placed in the statute. For example, the North Carolina nuisance statute, N.C. Gen. Stat. Sec. 19-1 to 19-8.3 (1983 & Cum. Supp. 1985) sets out a specific mechanism for assuring that the allegedly obscene nature of material is promptly adjudicated. The statute sets forth a procedure whereby one temporarily enjoined from certain activity cannot only file a motion to dissolve the temporary restraining order, but can also have that motion heard within 24 hours of the time a copy of the motion is served or on the next day the superior court is open in the district. See N.C. Gen. Stat. Sec. 19-2.3.

Given the repeal of N.C. Gen. Stat. Sec. 14-190.2, there is no statutory safeguard against either the dilatory or good faith administrative delay by prosecutors. Thus, the seizure of allegedly obscene material is a form of censorship, and constitutes a “prior restraint.” In sum, the North Carolina statute is defective in view of Heller because it fails to provide a mechanism guaranteeing a prompt judicial determination of obscenity.

B. Strict Liability

N.C. Gen. Stat. Sec. 14-190.1 makes it unlawful for any person to intentionally disseminate obscenity. Defining obscenity has never been an easy chore. See New York v. Ferber, 458 U.S. 747, 754, 73 L.Ed. 2d 1113, 1121. See also Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L.Ed. 2d 793, 803-04 (1964) (Justice Stewart could not define obscenity but he knew it when he saw it). The phrase “intentionally disseminate obscenity” is fraught with ambiguity. Knowledge of the character and nature of material is certainly different from knowledge of the legal status of the material, but does the phrase “intentionally disseminate obscenity” mean that the disseminator must have knowledge of the content and the character of the material disseminated? Is knowledge of the contents alone sufficient? Or does the phrase impose strict liability when one intentionally acts? For example, pulling the trigger of a gun is an intentional act, but the nature, character or content of *577the act may differ if the gun is fired into the ocean or if the gun contains no bullets.

To avoid the hazard of self-censorship of constitutionally protected material, the United States Supreme Court rejected the notion that a person could be held strictly liable for the contents of material he disseminated. Smith v. California, 361 U.S. 147, 4 L.Ed. 2d 205 (1959). Equally important, the United States Supreme Court requires states to “show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature” of those materials. Hamling v. United States, 418 U.S. 87, 123, 41 L.Ed. 2d 590, 624 (1974) (emphasis added).

A disseminator must not only know that the material contains descriptions or depictions of sexual conduct (content), but he must also know that the descriptions or depictions of sexual conduct are, or could reasonably be deemed, lewd or offensive (character).2 This two-pronged scienter requirement, first suggested in 1966 in Mishkin v. New York, 383 U.S. 502, 16 L.Ed. 2d 56, reh’g denied, 384 U.S. 934 (1966) protects defendants from the ambiguity inherent in these types of laws, and avoids the dangers of self-censorship. Mishkin, 383 U.S. at 511, 16 L.Ed. 2d at 63. Admittedly, the two-pronged scienter requirement hampers effective law enforcement. It is not always easy to prove, for example, that those who disseminate books, periodicals, films, or videos, know the character of the material they sell. It is even more difficult to prove that sales clerks, by way of further example, know the character of all the material they sell. Further, nothing in Ham-ling prevents a disseminator from ordering, sight unseen, video tapes and books which are sealed in tamper-proof containers. The Hamling Court was obviously aware that some defendants would not be convicted because of the stringency of the content and character test. Nevertheless the Hamling Court used the conjunc*578tion “and.” Indeed, the Supreme Court has not relaxed the two-pronged scienter requirement in the twenty years since Mishkin.

Apparently, the trial court agreed with plaintiffs that Section 14-190.1, as written, is constitutionally overbroad. Giving the statute a limiting construction, the trial court said: “When reasonably construed, G.S. Sec. 14-190.1(a) provides that a person may be convicted of violating that statute only upon proof beyond a reasonable doubt that he knew the character or content of the material when he disseminated it as required by Hamling.” (Emphasis added.) This construction, however, does not save the statute because Hamling and Mishkin require proof of the defendant’s knowledge of both the contents and the character of the material.

Defendants’ reliance on State v. Bryant, 16 N.C. App. 456, 461, 192 S.E. 2d 693, 696 (1972) is misplaced. Bryant was decided nineteen months before Hamling, and the Bryant holding that the intentional dissemination of obscenity requires a finding of intent and guilty knowledge, does not suggest whether “intent and guilty knowledge” refers to the content or the character (or both) of the material one intentionally disseminates.

In my view, the two-pronged scienter requirement helps to ensure that individuals will not be deterred from disseminating constitutionally protected material out of fear that the material could be found unlawful since the line between obscene and non-obscene material is “dim and uncertain.” Bantam Books v. Sullivan, 372 U.S. 58, 66, 9 L.Ed. 2d 584, 590 (1963). The majority’s quote from United States v. Wurzbach that “[t]he precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk,” is inap-posite since Wurzbach is not a first amendment case. 280 U.S. 396, 399, 74 L.Ed. 2d 508, 510 (1930). Some rights can be chilled but not first amendment rights.

C. Private Dissemination

The 1985 amendment to G.S. Sec. 14-190.1 deleted the words “in any public place” so as to prohibit the dissemination of obscenity in any place, whether public or private. Because dissemination does not require a commercial transaction and because a right to possess obscene material in the privacy of one’s home *579was recognized in Stanley v. Georgia, 394 U.S. 557, 22 L.Ed. 2d 542 (1969), plaintiffs argue that G.S. Sec. 14-190.1 is overbroad and conflicts with Stanley by extending its tentacles of proscription far beyond the public realm contemplated by the United States Supreme Court.

The United States Supreme Court has adamantly refused to permit state regulation of possession of obscenity in one’s home. See Stanley v. Georgia; Paris Adult Theater I v. Slayton, 413 U.S. 49, 37 L.Ed. 2d 446 (1973); United States v. Orito, 413 U.S. 139, 37 L.Ed. 2d 513 (1973); United States v. 12 200-ft Reels of Super 8 MM. Film, 413 U.S. 123, 37 L.Ed. 2d 500 (1973). Specifically, in Stanley, the Court stated:

[W]e think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

394 U.S. at 565, 22 L.Ed. 2d at 549-50. And, in Paris Adult Theater, the court said: “The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions,” 413 U.S. at 57, 37 L.Ed. 2d at 457.

Yet, G.S. Sec. 14-190.1 seems to criminalize the innocent sharing of a magazine by a person with his or her friend in the privacy of his home. And although it may not be popular, it is no doubt relatively common for consenting adults, including spouses, to view together what under the statute could be considered obscene material in the privacy of a home. Consequently, plaintiffs’ challenge that the statute prohibits the non-commercial dissemination of obscenity in the privacy of one’s home is understanda*580ble.3 Plaintiffs’ challenge is not fully supported by Stanley, however.

Although the right to possess obscene material may be hollow without the correlative rights to obtain or share obscene material, the holding in Stanley is narrow in scope and application. Stanley is a right to privacy case, focusing on “freedom of mind and thought and on the privacy of one’s home.” United States v. Reidel, 402 U.S. 351, 356, 28 L.Ed. 2d 813, 817 (1971). Possession of obscene material in the home is sanctioned by Stanley. The Stanley Court did not address the question whether the State can constitutionally criminalize the private communication of sexually explicit material from one consenting adult to another within the confines of the home.

My dissent on this issue is based on the accepted postulate that a law is overbroad if it does not aim specifically at the evil within the allowable area of government control. See Thornhill v. Alabama, 310 U.S. 88, 97, 84 L.Ed. 1093, 1100 (1940). In my view, the deletion of the words “in any public place” substantially extended the reach of the statute beyond its legitimate scope. Laudable legislative efforts to eliminate the calculated purveyors of filth for profit, see Mishkin, 383 U.S. at 510, 16 L.Ed. 2d at 63, and to prohibit selling and promoting the perversion of sex must be scrutinized carefully. When a statute peers into the bedrooms of married couples, for example, to close over-the-counter “Joy of Sex” type books or even clearly obscene books, the statute must yield to the Constitution which protects the people from their government.

In this case, defendants argue that the “public place” requirement was deleted “for fear that private clubs could not be prosecuted given the public place language in former G.S. Sec. 14-190.1 (a).” That goal could have been achieved by a much narrower statute — a statute that would not infringe on an adult’s zone of priva*581cy when viewing obscene material in his home. In my view, the challenged statute is constitutionally overbroad.

And, were it sufficient to note, as did the majority, ante p. 558, that “the General Assembly expressly excluded from the reach of G.S. Sec. 14-190.1 any use of materials protected by the guarantees of the Constitution of the United States and of the North Carolina Constitution” then very little need would exist for the enactment of a comprehensive obscenity statute. The legislature could simply say in an all-purpose omnibus clause that “This State protects speech that is guaranteed by the federal and state constitutions.” Of course, saying it is so does not make it so, and the suggestion that a citizen has to read First Amendment cases or guess about the specific conduct proscribed by statute does not square with constitutional jurisprudence.

A final, and equally incongruous if not fatal question arises: Does the challenged statute permit the anomalous result in which an individual can leave a room with obscene material in plain view (an opened book, a picture on the wall, or a playing video) and escape prosecution if a friend walks in and sees the material?

II

Sexual Exploitation of Minors Statute

That states have greater leeway to regulate sexually explicit material depicting minors is clear beyond cavil. New York v. Ferber, 458 U.S. 747, 756, 73 L.Ed. 2d 1113, 1122. Indeed, only few could decry, unabashedly, legislative efforts to eradicate the baleful impact of hard-core child pornography. As stated in Ginsberg v. New York, “a state may permissibly determine that, at least in some precisely delineated areas, a child ... is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” 390 U.S. 629, 649-50, 20 L.Ed. 2d 195, 209-10 (1968) (Stewart, J., concurring). That a legislature has correctly assessed community values and attitudes relating to sexual exploitation of minors does not mean, however, that the legislature has carte blanche authority to regulate all expression. Even in regulating the use of minors in sexually explicit materials, states must “suitably limit” the proscribed material to that which is pornographic and whose production is physically or psychologically harmful to minors. See New York v. Ferber, 458 U.S. *582at 760-764, 73 L.Ed. 2d at 1124-1127. States must still draft and articulate obscenity statutes with precision so as not to infringe upon the constitutional rights of minors or adults.

In balancing the obvious need to protect children and the rights of adults to view or purchase non-obscene, yet sexually oriented, material, legislatures must not deter the legitimate exercise of free speech rights. The constitutional bounds of protected and unprotected expression must be clearly delineated, otherwise, legislatures will “reduce the adult population ... to reading [or seeing] only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383, 1 L.Ed. 2d 412, 414 (1957) quoted in Bolger v. Young’s Drug Products Corp., 463 U.S. 60, 73, 77 L.Ed. 2d 469, 482 (1983).

Significantly, the defendants admit in their pleadings that G.S. Secs. 14-190.16 and 14-190.17 make it unlawful to disseminate to adults or minors material which is not obscene, which is not harmful to minors, and which has serious literary, artistic, political or scientific merit. Nevertheless, as stated above, I concur in the majority’s explicit and implicit holding that G.S. Secs. 14-190.16 and 14-190.17 require the use of a live minor to sustain a conviction thereunder and that G.S. Sec. 14-190.17’s proscription against the dissemination of material that depicts minors engaged in sexual activity is not overbroad insofar as it relates to excretory functions and to “an act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a person clad in undergarments or in revealing or bizarre costume.” However, I believe the statute is unconstitutional since it “impermissibly bans all depictions of persons portrayed as minors in a romantic encounter that involves an apparent sexual touching,” ante p. 567, and since it contains an inference of minority and fails to include a mistake of age defense.

A. Overbreadth

The range of expressive activity falling within the import of the provision proscribing the dissemination of material that depicts minors engaged in sexual activity could be staggering. Some balletic representations of love that are danced may be proscribed, since the definition of sexual activity includes a touching, presumably with any part of the body, the clothed or unclothed buttocks of another person, or the clothed or unclothed breast of *583a human female. Sexually suggestive ballroom dance scenes may be outlawed, too, even though not sexually exploitive of minors.

When a legislature seeks to protect minors by prohibiting material that is not harmful to minors, the legislature has gone too far. The admission by the defendants — the Attorney General of North Carolina and the prosecutors from various judicial districts who are authorized to enforce the law — that G.S. Secs. 14-190.16 and 14-190.17 prohibit the dissemination of material that is not harmful to minors is fatal to their claim that the statutes are not overbroad. Even given the requirement of “substantial overbreadth” when statutes regulate conduct plus speech, as opposed to pure speech, New York v. Ferber, 458 U.S. 747, 770, 73 L.Ed. 2d 1113, 1131, the statutes in question fall below the judicially cognizable chilling mark because the admission by the defendants points out the vagaries of prosecutorial discretion.

Admitting that a statute proscribes the dissemination of material not harmful to minors is qualitatively different from admitting that a statute prohibits the dissemination of material depicting minors engaged in sexual activity even if that material has serious literary, artistic, political, or scientific merit. If only the latter admission was involved, then the saving construction given the New York statute in Ferber might apply. Specifically, the Ferber Court said:

While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of Sec. 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on “lewd exhibitionfs] of the genitals.” Under these circumstances, Sec. 263.15 is “not substantially overbroad and . . . *584whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick v. Oklahoma, 413 U.S. at 615-16, 37 L.Ed. 2d 830, 93 S.Ct. 2908.

458 U.S. at 773-74, 73 L.Ed. 2d at 1133. This quote is based on the premise that minors will be harmed; however, nothing in this quote allows a state to proscribe the dissemination of material not harmful to minors.

Plaintiffs argue that if the challenged statute “is allowed to stand, . . . numerous ‘PG’ and ‘R’ rated video-tapes . . . , including . . . ‘Summer of ’42,’ ‘Animal House,’ . . . ‘Blue Lagoon,’ ‘Endless Love,’ . . . fall within the statute and are banned.” It is not necessary to agree with plaintiffs to conclude that if “the State’s compelling interest in protecting its youth from the debilitating psychological and emotional trauma that are attended with child pornography,” ante p. 567, is advanced by banning material not harmful to minors, then the legitimate reach of the statute has no bounds; no sex education film or pictorial documentary would be sacrosanct; many books in public libraries would be shelved; and few art museums could display all their classic works.

B. Strict Liability: Mistake of Age No Defense

1. G.S. Secs. 14-190.16 and 14-190.17 make sexual exploitation of minors a strict liability offense by imposing criminal sanctions upon one who produces or disseminates material that depicts individuals under eighteen engaged in “sexual activities.” Both statutes state that “[mistake of age is not a defense to a prosecution.” Since the age of the individúal engaged in sexual activity is an essential element of the offense, the strict liability imposed by the statutes fosters, rather than avoids, the hazards of self-censorship.

In Smith v. California, 361 U.S. at 152, 4 L.Ed. 2d at 210, the Supreme Court reversed an obscenity conviction, stating:

(0]ur holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance’s strict liability feature would tend seriously to have that effect, by penalizing book sellers, *585even though they had not the slightest notice of the character of the books they sold.

Similarly, in Ginsberg, the court stated that the constitutional requirements of scienter “rests on the necessity ‘to avoid the hazards of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity’.” 390 U.S. at 644, 20 L.Ed. 2d at 206, quoting Mishkin, 383 U.S. at 511, 16 L.Ed. 2d at 63. Of course, G.S. Secs. 14-190.16 and 14-190.17 are not “obscenity” statutes; however, the dangers of self-censorship are nevertheless present. Indeed, the chance of self-censorship looms even more prominently since neither section requires that the material be “obscene” and since both G.S. Secs. 14-190.16 and 14-190.17 impose mandatory prison sentences for violators. Because a substantial portion of the sexual expression prohibited by these sections would be entitled to full constitutional protection if a minor were not participating, a defendant’s knowledge of the age of participants is especially crucial.

In my view, G.S. Secs. 14490.16(c) and 14490.17(c) chill the rights of those who seek to engage in legitimate, fully protected expressive activity. The risk is particularly acute for those who distribute or otherwise disseminate books, periodicals, films or video tapes because those people typically play no role in the production of the material they disseminate. How is the video tape dealer to know the ages of the actors and actresses in movies produced in Hollywood? Under G.S. Sec. 14-190.16 a distributor would be punished with mandatory imprisonment even if the producer, over whom he had no control, made an innocent mistake as to the age of the participants. As a practical matter, full compliance with G.S. Secs. 14-190.16 and 14-190.17 requires the prudent business person who knows the content and character of the material in stock to be correct in his or her assessment that no one under eighteen is depicted engaging in sexual activity, or to remove all movies involving sexual activities for fear that one of the persons might turn out to be a minor or, although over eighteen, might be playing the role of a minor. This the Constitution will not allow. In my view, the strict liability feature of the Sexual Exploitation of Minor statutes renders them unconstitutional.

*586C. Inference of Minority

The inference of minority under G.S. Secs. 14-190.16 and 14-190.17 are equally infirm. The statutes read, “. . . the trier of fact may infer that a participant in sexual activity whom material through its title, text, visual representations, or otherwise represents or depicts as a minor is a minor.” G.S. Sec. 14-190.16; G.S. Sec. 14-190.17. When the effect of a statute places the burden on the defendant to prove that a participant in a movie is over eighteen years of age, the defendant has been denied due process. The Due Process clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 25 L.Ed. 2d 368, 375 (1970). Moreover, since the intent of N.C. Gen. Stat. Secs. 14-190.16 and 14-190.17 is to protect children and to prosecute those who profit from child pornography, the inference unconstitutionally brings within the statute’s scope films in which adult actors and actresses portray minors. A film in which adult participants engage in sexual, but not obscene, activity, is considered to be protected speech by the Ferber decision in which the court stated: “[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.” 458 U.S. at 763, 73 L.Ed. 2d at 1126.

The defendants’ suggestion that the statutes were not intended to cover nineteen-year-old persons, for example, portraying seventeen-year-old persons is based on their interpretation of the statute, not on the literal wording of the statutes. We should not require our citizens presciently to anticipate how a law will be interpreted and confidently to disregard the literal wording of statutes. Finally, defendants’ argument that G.S. Sec. 14-190.17 “is not unlike G.S. Sec. 14-202.1 which makes it a crime to take indecent liberties with a child under 16 years of age irrespective of the defendant’s knowledge of his victim’s age” is inapposite. The dissemination of books, films and videos produced by others, when the disseminator has never before seen the participants, is decidedly different from the situation in which a defendant sees, can question and make judgments about a person’s age.

*587t-H HH I — I

Conclusion

I applaud and support legislative efforts to address the particularly sensitive issues of obscenity and to eradicate the evils of sexual exploitation of minors, but I do not believe legislative purposes or ends, however praiseworthy, can be pursued by means that too broadly stifle fundamental liberties. The danger of allowing a local censor to impose his or her standard on the public is apparent. So, in responding to the felt necessities of the time and the stated or perceived needs of the public, the legislature must draft legislation whose tentacles of proscription do not exceed constitutional commands. Neither the trial court nor this Court should graft onto the challenged statutes judicial limitations that will not be apparent to the citizenry. After all, citizens should regulate their behavior according to the plain meaning of precisely drafted statutes, not according to their guesses about saving judicial construction.

Believing that the challenged statutes are unconstitutional in the particulars discussed above and that in those particulars the statutes cannot be salvaged by judicial interpolation or the all-purpose saving clause in G.S. Sec. 14-190.1(b)(4), I voice this dissent, knowing the legislature can try again.

. See Roth v. United States, 354 U.S. 476, 484, 1 L.Ed. 2d 1498, 1507 (1957) (“[IJmplicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”); Miller v. California, 413 U.S. 15, 23, 37 L.Ed. 2d 419, 430 (1973) (“This much has been categorically settled by the court, that obscene material is unprotected by the First Amendment.”), reh’g denied, 414 U.S. 881 (1973); State v. Bryant, 16 N.C. App. 456, 461, 192 S.E. 2d 693, 696 (1972) (“The dissemination of obscenity is not protected by the Constitutions.”).

. The strict liability standard was actually a part of G.S. Sec. 14-190.1 before the 1985 amendment. At that time, however, a prior hearing was statutorily mandated. Thus, anyone who could be prosecuted under G.S. Sec. 14-190.1 would not only know the nature of the material before the prohibited dissemination, but would also know that the material was in fact obscene. With the repeal of the proviso authorizing a prior adversary hearing the strict liability standard becomes particularly burdensome.

. The North Carolina Obscenity Statutes have historically excluded regulation of the kinds of private disseminations now made feloniously criminal by the amendment to G.S. Sec. 14-190.1. Like G.S. Sec. 14-190.1 prior to its amendment, former G.S. Sec. 14-189.1 contained a section which expressly excluded “disseminations not for gain, to personal associates other than children under sixteen.” Today, such disseminations, occurring in the privacy of one’s home, would subject the disseminator to felony prosecution.