Emilia Clarke as Daenerys Targaryen and Kit Harington as Jon Snow in HBO’s “Game of Thrones.” Can that show be considered pornographic? The Supreme Court of Washington says it normally would not be, and yet it could fall under a lower court’s “vague” definition because it includes “depictions of simulated sex.” (Helen Sloan / HBO)

Emilia Clarke as Daenerys Targaryen and Kit Harington as Jon Snow in HBO’s “Game of Thrones.” Can that show be considered pornographic? The Supreme Court of Washington says it normally would not be, and yet it could fall under a lower court’s “vague” definition because it includes “depictions of simulated sex.” (Helen Sloan / HBO)

A sex offender challenges the state to define pornography

And the state Supreme Court agrees that a condition for his probation is “unconstitutionally vague.”

OLYMPIA — A Snohomish County man argued that a condition of his impending probation is so vague he could be punished for watching “Game of Thrones” — and the state Supreme Court agreed.

In a unanimous decision earlier this month, the court ruled that the condition of community custody for Jameel Padilla, of Everett, is “unconstitutionally vague” because it does not clearly define what constitutes pornographic material, which he’s prohibited from viewing. The court said that leaves him “vulnerable to arbitrary enforcement.”

The court noted the condition for release prohibits Padilla from viewing “depictions of simulated sex.” That “would unnecessarily encompass movies and television shows not created for the sole purpose of sexual gratification. Films such as ‘Titanic’ and television shows such as ‘Game of Thrones’ depict acts of simulated intercourse but would not ordinarily be considered ‘pornographic material,’ ” wrote Justice Stephen Gonzalez for the majority.

And, Gonzalez continued, the condition’s ban on viewing “depictions of intimate body parts impermissibly extends to a variety of works of arts, books, advertisements, movies, and television shows.”

The justices reversed the state Court of Appeals, which upheld the condition, and directed the trial court to consider whether a definition of pornographic material can be crafted that is clear and narrowly tailored based on Padilla’s crime.

Padilla, 41, was arrested in 2012 on suspicion of sending sexually explicit messages to a 9-year-old girl in California. During the investigation, authorities found sexually explicit photos and videos of young children on his computer.

He was convicted of two counts of viewing child pornography and is serving a seven-year sentence at Stafford Creek Corrections Center, according to the Department of Corrections. His expected release date is in 2020.

Padilla was separately convicted of communicating with a minor for immoral purposes. He received a 75-day sentence and 12 months of community custody for which multiple conditions were imposed. One of those is at the center of this case.

It bars him from possessing and accessing “pornographic materials,” which are defined as “images of sexual intercourse, simulated or real, masturbation, or the display of intimate body parts.” It would be up to a community corrections officer to decide if Padilla violated the condition.

Mary Swift, Padilla’s attorney, argued in legal briefs and to the high court that the vagueness of the condition could result in his punishment for ordinary and constitutionally protected activities.

“Can Padilla own the movie ‘Titanic’? Can he see ‘Schindler’s List’ in a theater? Can he watch a movie or television show at home that includes simulated intercourse or any nudity at all?” Swift wrote.

“Can he own a medical textbook of human anatomy? Can he visit the Seattle Art Museum? Can he go to the public library to view a book containing Georgia O’Keeffe paintings, which arguably depict female genitalia? Can he display a print of Michelangelo’s ‘The Creation of Adam’ in his home? Can he read a magazine containing a Victoria’s Secret advertisement? One can only guess the answers to these questions, and therein lies the problem.” she wrote.

In an interview Monday, Swift said she knew the condition was too broadly penned.

This isn’t a new debate, she noted. Pornography has long been considered vague and difficult to define, she said.

In the early 1960s, a manager of an Ohio movie theater was convicted of violating obscenity laws by showing a French film considered by authorities to be pornographic. The U.S. Supreme Court overturned the conviction in 1964, determining the film was not obscene.

In that case, Justice Potter Stewart wrote that he could not define hard-core pornography, “but I know it when I see it.”

Jerry Cornfield: 360-352-8623; jcornfield @herald net.com. Twitter: @dospueblos.

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