Washington Supreme Court hears challenge to community-custody ban on 'exploitative' material

The Washington State Supreme Court heard argument Tuesday in State of Washington v. Jeremiah Jeffrey Porter over whether a community-custody condition forbidding possession or access to "exploitative" material is unconstitutionally vague and implicates First Amendment protections.

Defense counsel Casey Duranis, representing petitioner Jeremiah Jeffrey Porter, told the court the condition is "unconstitutionally vague" because it leaves the definition to a therapist or a community corrections officer (CCO) without objective grounding. "The only limit is a CCO's or a therapist's imagination," Duranis said, arguing that delegation of definitional authority creates a subjective sweep that fails due-process notice and allows arbitrary enforcement.

The State, represented by Randall Sutton of the Kitsap County Prosecutor's Office, told justices that existing statutes and the court's precedents provide evaluative tools for CCOs and treatment providers and that similar conditions have repeatedly been upheld. Sutton cited cases the State says narrow the phrase to material depicting a minor's performance of explicit conduct and urged the court either to uphold the condition or, if it finds vagueness, to remand so the trial court may craft replacement language.

Throughout argument, several justices pressed both sides on practical overlap between the challenged "exploitative" provision and an unchallenged prohibition on "explicit materials" (an Appendix H item tied to statutory definitions). Justices asked whether cross-referencing existing statutes and case law would narrow "exploitative" to live or photographic depictions of minors and whether simulated conduct would fall within the category. Counsel for the defense and the State disputed whether the provision adds any work beyond the explicit-materials prohibition and whether reliance on individualized clinical materials (psychosexual evaluations and pre-sentence reports) makes the condition inherently subjective.

Duranis said there is no statute that expressly defines "exploitative materials" in the judgment and sentence and emphasized that a condition that assigns definitional authority to a CCO or therapist "is a subjectivity problem lodged within the CCOs and the therapist's power." Sutton responded that cross-references to statutes and cases (he cited Perkins, Douglas and other precedent) have historically limited such language and that Kitsap County forms including the provision have been upheld multiple times in the Court of Appeals.

The court also discussed remedial options if it found the language vague. Defense counsel said the court could strike the clause or remand with specific direction (for example, to tie the prohibition to material generated from exploitation of children as defined in the Revised Code of Washington). The State said it would prefer the opportunity on remand to sanitize or amend the provision rather than have it struck.

At the close of argument, the court thanked counsel and took the case under advisement. "This case is submitted," the court announced before recessing; no ruling was made from the bench.

What happens next: The justices will consider the briefs, oral arguments and controlling precedents before issuing a decision that could affirm, reverse, or remand the sentencing condition for revision. The record shows the court focused on whether statutory cross-references or objective standards can cure vagueness and whether the challenged clause performs work beyond existing prohibitions.