Michael Ishee v. Mississippi

Governmental regulation of First Amendment rights, particularly freedom of speech and expression, draws close constitutional scrutiny since these rights are deemed so basic and fundamental. While child pornography is not protected speech, any statutory regulation must be drawn with such specificity as to avoid overreach and undue restraints of protected speech. To prevent overreach, Ferber v. New York, 458 U.S. 747 (1982) and its progeny clearly mandated that any statute regulating child pornography contain some element of scienter. Prior to 2013, Miss. Code, 1972, Ann., § 97-5-33(5) was void of any element of scienter in the criminalization of the possession of child pornography. (App.41a). In attempting to cure this impermissible void, the State inserted elements of scienter into the indictment to which Petitioner ultimately pleaded guilty. (App.43a). Petitioner seeks to annul his plea and sentence, asserting that without scienter the statute was facially unconstitutional, thus void ab initio, and that the prosecution’s insertion of scienter into the indictment was an ex-post facto act and in violation of the doctrine of separation of powers. The questions thus presented are:

1. Is a statute proscribing the mere possession of child pornography facially unconstitutional if it contains no element of scienter?

2. If scienter is required in the statutory regulation of child pornography, can the omission of scienter in the charging statute enacted by the legis-