Cases

On May 7, 2015, the Circuit Court of Marion County certified the following questions to the Court:
1. Does the Legislature’s failure to specifically define any impermissibly-depicted “conduct,” See New York v. Ferber, 458 U.S. 747, 764 (1982)[;] [the Legislature’s] failure to define “partially clothed”[;] or [the Legislature’s] proscription of material based on a “purely prurient” usage render [West Virginia Code §] 61-8C-3A [regarding prohibiting child erotica] void for vagueness under either the Fourteenth Amendment to the United States Constitution or Article III, Section 10 of the Constitution of West Virginia?
2. By proscribing materials other than those falling within the definition of “child pornography” upheld in New York v. Ferber, 458 U.S. 747, 764 (1982), or by prohibiting works based on their particular appeal to the possessor, is [§] 61-8C-3A facially overbroad under the First Amendment to the United States Constitution as applied in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), or Article III, Section 7 of the Constitution of West Virginia?
3. By exempting depictions of minors used to market commercial products, does § 61-8C-3A impose an invalid content-based distinction under either the First Amendment to the United States Constitution as applied in R.A.V. v. City of Saint Paul, 505 U.S. 377 (1992), or Article III, Section 7 of the Constitution of West Virginia?
The circuit court answers each of these questions in the affirmative.