State v. Jeffries-Porter

majority opinion

FILE THIS OPINION WAS FILED

FOR RECORD AT 8 A.M. ON

OCTOBER 15, 2026

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON

OCTOBER 15, 2026 SARAH R. PENDLETON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 104576-0

Respondent, EN BANC

Filed: October 15, 2026

JEREMIAH J. JEFFRIES-PORTER,

Petitioner.

GORDON MCCLOUD, J.—Jeremiah Jeffries-Porter was convicted

of first degree child molestation. At sentencing, the court imposed a

community custody condition prohibiting him from possessing or accessing

“sexually exploitive materials (as defined by Defendant’s treating therapist or

CCO [(Community Corrections Officer)]).” Clerk’s Papers (CP) at 75.

Trial courts have discretion to impose all sorts of conditions of release

to protect the public and rehabilitate the offender. And trial courts have the

discretion to delegate supervision of conditions to experts—like a therapist or

CCO—with the skills to promote and monitor compliance.

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

But constitutional due process clause protections limit the trial court’s power

to create and delegate those conditions. The due process clauses of the state and

United States constitutions require such conditions to be clear enough to provide fair

notice to not just the therapist and CCO—but also to the defendant—of what is

prohibited. U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. In a case like this,

where a government prohibition limits access to First-Amendment-protected

content, the state and federal constitutions also require such conditions to be

narrowly tailored and directly related to the goals of protecting the public and

promoting rehabilitation. U.S. CONST. amend. I.

Jeffries-Porter argues that this community custody condition fails those

constitutional requirements. We agree. “Sexually exploitive” can mean many

different things. The community custody condition does not define that phrase or

specify which one of its many possible meanings applies to Jeffries-Porter. Neither

does any statute, regulation, or court case. The State has offered several competing

definitions of that phrase in this very case. And of all the appellate court decisions

that have considered the constitutionality of this condition, not one has been able to

define what it means in this context.

Neither can we. We therefore hold that the condition prohibiting

Jeffries-Porter from possessing or accessing “sexually exploitive materials (as

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

defined by Defendant’s treating therapist or CCO)” is unconstitutionally vague.

CP at 75. We remand to the trial court for further proceedings consistent with this

opinion.

FACTUAL AND LEGAL BACKGROUND

Jeremiah Jeffries-Porter pleaded guilty to one count of first degree

child molestation in violation of RCW 9A.44.083. 1 The trial court sentenced him

to 51 months in prison and 36 months of community custody. CP at 1, 72-73.

The trial court also imposed several community custody conditions, to start

upon his release from prison. One of those conditions directs him to

“[p]ossess/access no sexually exploitive materials (as defined by Defendant’s

treating therapist or CCO).” CP at 75.

Jeffries-Porter challenged this condition as unconstitutionally vague. The

Court of Appeals rejected that challenge in a split decision. State v. Jeffries-Porter,

No. 59267-3-II (Wash. Ct. App. Aug. 19, 2025) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2059267-3-II%20Unpublished%20Opinion.pdf.

“A person is guilty of child molestation in the first degree when the person has . . . sexual contact with another who is less than twelve years old and the perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.083(1).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

The Court of Appeals majority reasoned that the condition survived

a constitutional vagueness challenge because two statutes—which were neither

charged nor referenced in the condition or anywhere else in this case and which were

not called to the defendant’s, the therapist’s, or the CCO’s attention—could define

the condition’s scope.

The first unreferenced statute upon which the Court of Appeals relied

is RCW 9.68A.040. That statute defines the crime of sexual exploitation of a minor

(not charged here) as follows:

(1) A person is guilty of sexual exploitation of a minor if the person:

(a) Compels a minor by threat or force to engage in sexually

explicit conduct, knowing that such conduct will be photographed or

part of a live performance;

(b) Aids, invites, employs, authorizes, or causes a minor to

engage in sexually explicit conduct, knowing that such conduct will be

photographed or part of a live performance; or

control of a minor, permits the minor to engage in sexually explicit

conduct, knowing that the conduct will be photographed or part of a

live performance.

RCW 9.68A.040.

But this statute does not define or mention the term at issue here, “sexually

exploitive materials,” at all. Instead, it defines a different crime than the one charged

here—the crime of “sexual exploitation of a minor.” It defines that crime as

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

compelling, aiding, or permitting sexually explicit conduct by a child, knowing that

such conduct would be photographed or part of a live performance.

The second unreferenced statute upon which the Court of Appeals relied,

RCW 9.68A.011, defines yet another phrase—“sexually explicit conduct”—not

sexually exploitive conduct. And of course “explicit” carries a different meaning

than “exploitive.” The statute defines that other phrase—sexually explicit conduct—

as “actual or simulated”:

(a) Sexual intercourse, including genital-genital, oral-genital,

anal-genital, or oral-anal, whether between persons of the same or

opposite sex or between humans and animals;

(b) Penetration of the vagina or rectum by any object;

(d) Sadomasochistic abuse;

(e) Defecation or urination for the purpose of sexual stimulation

of the viewer;

(f) Depiction of the genitals or unclothed pubic or rectal areas of

any minor, or the unclothed breast of a female minor, for the purpose of

sexual stimulation of the viewer . . . ; or

(g) Touching of a person’s clothed or unclothed genitals, pubic

area, buttocks, or breast area for the purpose of sexual stimulation of

the viewer.

RCW 9.68A.011(8). 2

A prior version of this statute was in effect when Jeffries-Porter committed his crime. See LAWS OF 2010, ch. 227, § 3. The subsection has been amended and renumbered. LAWS OF 2026, ch. 223, § 2. Because the amendments do not affect our analysis, we cite the current version of the statute.

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

In other words, this statute defines a phrase, “sexually explicit conduct,”

that is absent from the child molestation statute defining Jeffries-Porter’s crime and

absent from the condition at issue in this case.

The Court of Appeals majority concluded that reading the community custody

condition at issue in this child molestation case in conjunction with these statutes

concerning different phrases and a different crime narrows the condition’s

meaning—even though nothing in Jeffries-Porter’s case told him or his CCO or

his therapist to read the condition in conjunction with those statutes.

Jeffries-Porter, slip op. at 9. The majority also noted that several other unpublished

Court of Appeals decisions upheld this same condition for the same reasons. Id. at

7-8 (citing State v. Perkins, No. 42793-1-II (Wash. Ct. App. Dec. 20, 2013)

(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2042793-1-II%20%20Unpublished%20Opinion.pdf; State v. Thompson,

No. 81044-8-I (Wash. Ct. App. June 8, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/810448.pdf; State v. Fenney,

No. 56886-1-II (Wash. Ct. App. Aug. 29, 2023) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2056886-1-II%20Unpublished%20Opinion.pdf).3 The majority did not mention an additional

We discuss these cases at pages 13-14, infra.

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

unpublished Court of Appeals decision that accepted the State’s concession

that “sexually exploitative materials” was “‘vague as written’” and remanded

for the trial court to clarify it. State v. Foley, No. 56498-0-II, slip op. at 28

(Wash. Ct. App. Mar. 21, 2023) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2056498-0-II%20Unpublished%20Opinion.pdf#search=56498-0-II.

The Court of Appeals dissent came to the opposite conclusion. It decided that

this condition does not explain to a person of ordinary intelligence what materials

were off-limits. Jeffries-Porter, slip op. at 18 (Veljacic, A.C.J., dissenting). The

dissent explained that neither statute cited by the majority defines the term at issue

in this case. It explained that only one of those cited statutes even uses the word

“exploitation,” that the statute that uses the word “exploitation” fails to define that

word, and that the statute that uses that word uses it only to explain the elements of

a different crime. Id. at 18-19. The dissent continued that the other statute upon

which the majority relied defines “sexually explicit conduct,” not “sexually

exploitive materials,” and “explicit” carries a different meaning from “exploitive.”

See id.

Finally, the dissent pointed out that although other Court of Appeals decisions

rely on those two statutes to conclude that the phrase “sexually exploitive materials”

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

survives a constitutional vagueness challenge, “[t]ellingly, no opinion . . . actually

provides a definition” of that challenged phrase. Id. at 19.

We granted review to resolve this conflict over whether a condition barring

a defendant from accessing or possessing “sexually exploitive materials (as defined

by defendant’s therapist or CCO)” provides sufficient notice, protects against

arbitrary enforcement, and is narrowly tailored to promote the State’s interest

in community safety and offender rehabilitation.

We hold that it does not. We also conclude that everything that might be

prohibited by this phrase, according to any of the multiple definitions that the State

has offered, is already covered by a separate, broader community custody condition

already imposed in this case. We therefore reverse the Court of Appeals and

remand to the trial court for further proceedings consistent with this opinion.

ANALYSIS

The Fourteenth Amendment and article I, section 3 of the

Washington Constitution require the government to provide fair warning about

what conduct it prohibits.4 State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008)

Jeffries-Porter cites both the federal and state constitutional provisions but does not argue that the state constitution provides greater protection than the federal constitution in this context.

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

(citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).

A community custody condition violates these due process protections if it (1) fails

to define the offense with sufficient definiteness that ordinary people (not just

therapists or CCOs) can understand what is proscribed or (2) fails to provide

ascertainable standards to protect against arbitrary enforcement. Id. at 752-53. We

apply these due process protections to community custody conditions in essentially

the same manner as we apply them to statutes and other enactments. See id. at 753.

But a condition like this, which implicates First Amendment rights, must meet

an additional constitutional requirement. To prevent a chilling effect on free speech,

conditions that restrict free speech rights must also be “narrowly tailored and

directly related to the goals of protecting the public and promoting the defendant’s

rehabilitation.” Id. at 757 (emphasis added); see Grayned v. City of Rockford,

408 U.S. 104, 109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (“Uncertain meanings

inevitably lead citizens to ‘“steer far wider of the unlawful zone” . . . than if the

boundaries of the forbidden areas were clearly marked.’” (alteration in original)

(quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 12 L. Ed. 2d 377

(1964) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct. 1332,

2 L. Ed. 2d 1460 (1958)))).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

As discussed below, the condition barring access to “sexually exploitive

materials” (without defining those terms, without relying on statutes that do define

those terms, and without providing helpful examples) is not clear and definite,

does not protect against arbitrary enforcement, and is not narrowly tailored

to protecting the public or promoting rehabilitation.

I. State and federal due process clause protections require community

custody conditions to be clear and definite. The condition barring access

to “sexually exploitive materials” fails to define that phrase or use other

permissible sources to define that phrase; it therefore violates due

process clause protections

A. The Condition at Issue Here Is Not Clear. We Must Therefore

Consider Whether Anything Else in This Case or in Any Other

Relevant Source Provides the Needed Clarity

As discussed above, a community custody condition must be clear and

definite. Such a condition is not unconstitutionally vague “‘merely because

a person cannot predict with complete certainty the exact point at which their actions

would be classified as prohibited conduct.’” State v. Hai Minh Nguyen,

191 Wn.2d 671, 679, 425 P.3d 847 (2018) (quoting City of Seattle v. Eze,

111 Wn.2d 22, 27, 759 P.2d 366 (1988)).

However, the condition must be clear enough that a person of ordinary

intelligence can understand what is prohibited, despite some possible areas

of disagreement. Id. (quoting Douglass, 115 Wn.2d at 179).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

The condition in this case is not clear enough for a person of ordinary

intelligence to understand what is prohibited. The State essentially acknowledges

this by directing our attention to other sources to explain what it means.

And the Court of Appeals essentially acknowledges this by looking to other sources

to explain it, too.

We agree that an imperfectly written community custody condition

might survive constitutional scrutiny if other appropriate sources clarify its meaning.

That clarity can come from a definition in the judgment and sentence (J&S) itself.

That clarity can come from a dictionary definition. Bahl, 164 Wn.2d at 754, 759;

Nguyen, 191 Wn.2d at 681-82. It can come from a statutory definition.

State v. J.H.-M., 4 Wn.3d 648, 652, 566 P.3d 847 (2025). It can come from other

cases providing a definition. Id. at 656-58. That clarity might even come from a list

of illustrative examples. See State v. Wallmuller, 194 Wn.2d 234, 236, 449 P.3d 619

(2019) (an illustrative list of prohibited places clarified and defined the

condition, such that it was not vague); State v. Frederick, 20 Wn. App. 2d 890, 906,

506 P.3d 690 (2022) (a clarifying list of prohibited material limits vagueness).

But none of those potential sources clarify the meaning of “sexually exploitive

materials” in this case.

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

B. Nothing in Jeffries-Porter’s Case Defines This Condition

Neither the J&S nor any other document in Jeffries-Porter’s own case defines

this condition or provides a list of clarifying examples.

C. No Statute, Combination of Statutes, or Court of Appeals Decision

Defines This Condition

We have stated that criminal defendants are expected to research other statutes

and court rulings to clarify the meaning of an ambiguous community custody

condition. We have adopted the fiction that such sources satisfy due process clause

requirements because they are “‘presumptively available to all citizens.’”5 Bahl,

164 Wn.2d at 756 (internal quotation marks omitted) (quoting State v. Watson,

This apparent limitation of the reach of due process clause protections to “citizens” was certainly an oversight, even at the time it was written. The protections of the due process clause, and the sources that might satisfy the due process clause, clearly apply to all persons within the territory of the United States—not just citizens. As the United States Supreme Court explained 130 years ago in Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and

the equal protection of the laws is a pledge of the protection of equal laws. . . . The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.” (Emphasis added.); see also Plyler v. Doe, 457 U.S. 202, 210, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) (noncitizens in this country are guaranteed equal protection of the laws, just as they are guaranteed due process of law under the Fifth and Fourteenth Amendments).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

160 Wn.2d 1, 8, 154 P.3d 909 (2007)); State v. Smith, 111 Wn.2d 1, 7, 759 P.2d 372

(1988).

As a result, we have upheld community custody conditions against vagueness

challenges when their terms are sufficiently defined in cross-referenced statutes or

case law. J.H.-M., 4 Wn.3d at 656-58 (upholding condition in part because our prior

case law defines and limits the term’s scope), 652 (upholding condition in part

because sentencing court explicitly limited condition’s scope by cross-referencing a

statutory definition); Nguyen, 191 Wn.2d at 676 (upholding condition because an

ordinary person can understand its meaning in the context of its dictionary definition

and a cross-referenced statutory definition).

But the disputed community custody condition at issue here contains no such

cross-referenced statutory definition to limit its scope. And a defendant subject to

this condition (or a CCO/treating therapist supervising such a defendant) will find

no clarity about the definition of “sexually exploitive materials” in the handful of

Court of Appeals decisions that have considered it.

As the Court of Appeals dissent explained, that court has repeatedly said in

unpublished decisions that “sexually exploitive materials” is not vague. But the

Court of Appeals itself has never actually defined that term. It has simply concluded

that its meaning is clear from two different non-cross-referenced statutes, without

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

ever saying what that meaning is.6 And as the Court of Appeals dissent

further explained, those two non-cross-referenced statutes are not clarifying.

See Jeffries-Porter, slip op. at 18-19. They discuss a different crime and a different

phrase and can be read together to support different meanings for the phrase,

“sexually exploitive materials.”

Perkins, slip op. at 9 (“When viewed together, these statutes do not require persons of ordinary intelligence to guess at what is meant by the condition prohibiting access to or possession of ‘sexually exploitive materials.’”); Thompson, slip op. at 12-13 (“‘When viewed together, these statutes do not require persons of ordinary intelligence to guess at what is meant by the condition prohibiting access to or possession of “sexually exploitative materials.”’” (quoting Perkins, slip op. at 9)); State v. Amaro, No. 56915-9-II, slip op. at 13 (Wash. Ct. App. Aug. 15, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2056915-9-II%20Unpublished%20Opinion.pdf (“Together, the two statutes provide sufficient notice of what ‘sexually exploitive materials’ are prohibited and do not require persons of ordinary intelligence to guess at what is meant by the condition prohibiting access to or possession of ‘sexually exploitive materials.’”); Fenney, slip op. at 13 (“Together, the two statutes provide sufficient notice of what sexually exploitive materials are prohibited. Ordinary people would not have to guess at the meaning of a condition prohibiting access or possession of sexually exploitive materials after reviewing these statutes, which are presumptively available to all.”); State v. Braae, No. 59270-3-II, slip op. at 21 (Wash. Ct. App. Oct. 14, 2025) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2059270-3-II%20Unpublished%20Opinion.pdf (“Two statutory provisions, when viewed together, provide sufficient information so that a person of ordinary intelligence is aware of what type of materials this condition refers to.”), 22 (“Considering these two statutes together, it is not so subjective what types of materials would qualify as ‘sexually exploitive’ so to make the term constitutionally suspect.”), review denied, 5 Wn.3d 1039 (2026); Jeffries-Porter, slip op. at 9 (“We agree that the statutory elements of the crime of sexual exploitation of a minor read in conjunction with the statutory definition of ‘sexually explicit conduct’ are sufficient to limit the discretion of therapists and CCOs when defining the types of materials that offenders may not access under this condition.”).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

In fact, the State itself relies on those two non-cross-referenced statutes to

provide several inconsistent interpretations of “sexually exploitive materials.”

The State’s supplemental brief in this court asserts that based on those two

other statutes, the condition at issue here bars access to materials containing

“persons engaged in sexually explicit conduct” rather than “minors,” even though

both statutes apparently pertain to minors: RCW 9.68A.040 explicitly references

minors, and RCW 9.68A.011(8) appears in the “Definitions” section of chapter

9.68A RCW, titled “Sexual Exploitation of Children.” Suppl. Br. of Resp’t at 10-11

(emphasis added).

At oral argument before this court, however, the State changed

its proposed definition. It asserted that this condition, when read together

with those two other statutes, barred access to “live or photographic materials

that showed the performance of a minor engaged in sexually explicit conduct.”

Wash. Sup. Ct. oral arg., State v. Jeffries-Porter, No. 104576-0 (May 19, 2026),

at 17 min., 49 sec. through 18 min., 14 sec., (emphasis added), video recording by

TVW, Washington State’s Public Affairs Network, https://www.tvw.org.

The State also expressed uncertainty about whether the condition is limited to

materials depicting a live or photographed performance of actual sexually explicit

conduct or whether it includes material depicting simulated conduct. When asked

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

whether the condition includes material depicting simulated conduct, counsel

responded, “I believe it does . . . ”, id. at 21 min., 45 sec. through 21 min., 50 sec.,

even though the definitions proposed by the State in its brief and at oral argument

both included a limitation to “live or photographic performances.”

Suppl. Br. of Resp’t at 10; Wash. Sup. Ct. oral arg., supra, at 17 min., 49 sec. through

18 min., 14 sec. (Remember, RCW 9.68A.011(8) includes simulated acts, but

RCW 9.68A.040 is limited to live or photographic performances, so either reading

is plausible.)

In sum, even the State acknowledges that the statutes upon which the

Court of Appeals majority relied support several conflicting definitions of the

condition. The State’s own proposed definitions based on these two statutes differ

on whether the condition refers to materials concerning persons, materials

concerning minors, materials concerning actual live and photographed or videoed

acts, or materials concerning simulated acts. These distinctions matter; a condition

that applies to depictions of persons engaged in simulated acts would capture a

significantly broader set of materials than a condition that applies to depictions of

minors engaged in live or photographed sex acts.

Adding to the confusion, all those statute-based definitions—alone or

in combination—differ from the dictionary definitions of the same words.

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

D. The Dictionary Defines the Words Used in the Disputed Condition. But the

Dictionary Definition Differs from Both the Court of Appeals Majority’s

Definition and the State’s Many Definitions

When a community custody condition uses an undefined term or phrase, the

court may also consider its plain and ordinary meaning as set forth in a standard

dictionary. See Bahl, 164 Wn.2d at 754; Nguyen, 191 Wn.2d at 681-82.

In this case, though, the dictionary suggests a definition of the condition that

differs from the definitions suggested by the State. Webster’s Third New

International Dictionary defines “sexually” as “in a sexual manner” or “with regard

to or by means of sex.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2082

(2002). “Exploitive,” which shares the same definition as “exploitative,” is defined

as “relating to exploitation.” Id. at 802. “Exploitation” is defined as “an unjust or

improper use of another person for one’s own profit or advantage.” Id. at 801-02.

So, according to the dictionary, sexually exploitive materials are those that

“unjust[ly] or improper[ly] use … another person for one’s own profit or advantage”

“in a sexual manner.”

This dictionary definition is also plausible. But it conflicts with the definitions

that the State proposes and that the Court of Appeals majority seemed to accept

(discussed above).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

E. The State Expressed Uncertainty About Whether a Separate Community

Custody Condition Already Imposed in This Case Covers the Prohibitions in

the “Sexually Exploitive Materials” Condition; Its Uncertainty on That Point

Underscores the Difficulty of Pinning Down the Phrase’s Meaning

At oral argument, the State expressed uncertainty about whether material

barred by its proposed interpretation(s) of “sexually exploitive materials” would also

be barred by a separate, broader condition in Jeffries-Porter’s J&S prohibiting him

from “own[ing], us[ing], possess[ing] or pursu[ing] sexually explicit materials.”7

CP at 83.

The fact that two community custody conditions overlap does not necessarily

indicate that one of the conditions is vague or problematic. But the State’s confusion

about whether these conditions overlap does underscore the “sexually exploitive

materials” phrase’s vagueness: it demonstrates that even the State has difficulty

defining that condition’s scope.

Wash. Sup. Ct. oral arg., supra, at 18 min., 21 sec. through 19 min, 02 sec. (The Court: “So, going from [the State’s] definition, . . . isn’t everything that would be covered by what you said . . . already covered in the bar on possessing sexually explicit materials?” The State: “I think they’re pretty overlapping.”), 23 min., 8 sec. through 23 min., 24 sec. (The Court: “What [does] this condition [do] that isn’t already covered by the sexually explicit materials condition that we’ve said repeatedly is constitutional?” The State: “I was not involved in the drafting, so I really can’t answer that question specifically.”), 32 min., 18 sec. through 32 min., 39 sec. (The Court: “So you really think it is doing work independent of the bar on sexually explicit materials?” The State: “What I think is that I am not enough of a specialist in the sex crime area to know if it’s doing work.”).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

II. The First Amendment requires community custody conditions that limit

access to written or visual materials to meet “a greater degree of

specificity.” The condition barring access to “sexually exploitive

materials” also fails that First Amendment requirement

The First Amendment implications of the condition magnify its problems.

See Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)

(“Our concern [with the challenged statute’s vesting of discretion

to the police] is based upon the ‘potential for arbitrarily suppressing

First Amendment liberties . . . .’” (quoting Shuttlesworth v. City of Birmingham,

382 U.S. 87, 91, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965))); Bahl, 164 Wn.2d at 753

(“‘Vagueness concerns are more acute when a law implicates First Amendment

rights and a heightened level of clarity and precision is demanded of criminal statutes

because their consequences are more severe.’” (quoting United States v. Williams,

444 F.3d 1286, 1306 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285,

128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008))).

“[A] restriction implicating First Amendment rights demands a greater degree

of specificity and must be reasonably necessary to accomplish the essential needs of

the state and public order.” State v. Padilla, 190 Wn.2d 672, 678, 416 P.3d 712 (2018)

(citing State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993) (quoting

Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974))).

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

This condition fails to meet that stricter standard. It lacks definitional terms,

statutory references, case law definitions, illustrative examples, or any other

elaboration on what it covers. The trial court may certainly rely on the therapist and

CCO to define the precise contours of a condition based on those individuals’

professional expertise in supervising sex offenders. But the condition itself must

provide guidance to the therapist, the CCO, and the defendant about what the court

means. This condition fails to do so.

CONCLUSION

“[E]ither the condition as written provides constitutional notice and

protection against arbitrary enforcement or it does not.” State v. Sanchez Valencia,

169 Wn.2d 782, 789, 239 P.3d 1059 (2010).

Here, it does not. The condition fails to define “sexually exploitive materials.”

No statute or case defines that term. No list of explanatory examples helps limit the

condition. And although the State claims that two non-cross-referenced statutes

clarify the term’s meaning (and the Court of Appeals agreed in a series

of unpublished opinions), the State itself acknowledges that those two statutes can

be read together to produce multiple—materially different—possible definitions of

the phrase. In addition, all the State’s proposed definitions differ from the dictionary

definitions of the words at issue. We therefore hold that the condition prohibiting

State v. Jeffries-Porter (Jeremiah J.), No. 104576-0

Jeffries-Porter from possessing or accessing “sexually exploitive materials (as

defined by [his] treating therapist or CCO)” fails to provide constitutional notice,

fails to protect against arbitrary enforcement, and fails to narrowly tailor its

prohibition to achieve the State’s lawful goals.

Accordingly, we reverse the Court of Appeals and remand to the trial court

for further proceedings consistent with this opinion.

WE CONCUR:

Melody, J.

Angelis, J.

No. 104576-0

STEPHENS, C.J. (dissenting)—Jeremiah Jeffries-Porter pleaded guilty to

first-degree child molestation and as part of his conviction was required to follow

several community custody conditions. He challenges a condition that prohibits him

from possessing or accessing “sexually exploitive materials,” a phrase he argues is

unconstitutionally vague and violates his First Amendment rights. U.S. CONST.

amend. I. The majority agrees, broadly construing the phrase “sexually exploitive

materials” based on dictionary definitions rather than the clear context of JeffriesPorter’s conviction and statutes defining “sexual exploitation.” When considered

in this proper context, the condition provides sufficient notice to Jeffries-Porter that

he may not access materials depicting the sexual exploitation of children. Such

materials are unprotected by the First Amendment, and the condition at issue

provides sufficient guidance to overcome a vagueness challenge. For this reason, I

respectfully dissent.

ANALYSIS

The Fourteenth Amendment to the U.S. Constitution and article I, section 3

of our state constitution both prohibit overly vague criminal statutes or community State of Washington v. Jeffries-Porter, No. 104576-0

(Stephens, C.J., dissenting)

custody conditions. 1 This due process protection ensures that individuals have fair

warning of proscribed conduct such that a person of ordinary intelligence could

reasonably understand what is prohibited. Spokane v. Douglass, 115 Wn.2d 171,

178, 795 P.2d 693 (1990). Under this framework, a community custody provision

is unconstitutionally vague if it (1) fails to define the offense with sufficient

definiteness that ordinary people can understand what is proscribed or (2) fails to

provide ascertainable standards of guilt to protect against arbitrary enforcement.

State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). We apply the same

rules of interpretation to community custody conditions as we do to statutes, but with

one distinction. See id. at 753. Unlike the “heavy burden” borne by challengers of

vague statutes and ordinances, community custody conditions are not enacted by the

legislature and, rather, are “within the discretion of the sentencing court and will be

reversed if manifestly unreasonable.” Id.

We do not consider community custody provisions in a vacuum; rather, we

examine them in the context in which they are used to determine whether they are

sufficiently definite to satisfy due process protections. Id. at 754 (citing Douglass,

115 Wn.2d at 180). Community custody conditions appropriately address risks

posed by an offender upon release and are therefore “afforded a sensible,

I agree with the majority that in this context, Jeffries-Porter does not argue that the state constitution provides greater protection than the federal constitution and thus we need not examine the issue. Majority at 8 n.4.

State of Washington v. Jeffries-Porter, No. 104576-0

(Stephens, C.J., dissenting)

meaningful, and practical interpretation.” Douglass, 115 Wn.2d at 180; see also

State v. Dixon, 78 Wn.2d 796, 805, 479 P.2d 931 (1971) (“Where a statute is

specifically directed at a manifest evil and couched in language drawn from history

and practice, courts should not ‘parse the statute as grammarians or treat it as an

abstract exercise in lexicography.’” (quoting Beauharnais v. Illinois, 343 U.S. 250,

253, 72 S. Ct. 725, 96 L. Ed. 919 (1952))).

Our precedent recognizes the impossibility of defining every risk or

prohibition with absolute certainty, and “[i]f ‘persons of ordinary intelligence can

understand what the [law] proscribes, notwithstanding some possible areas of

disagreement, the [law] is sufficiently definite.’” Bahl, 164 Wn.2d at 754 (second

and third alterations in original) (quoting Douglass, 115 Wn.2d at 179); In re Pers.

Restraint of Ansell, 1 Wn.3d 882, 899, 533 P.3d 875 (2023) (plurality opinion) (“Due

process does not require that [a defendant] should be able to ‘predict with complete

certainty the exact point at which [their] actions would be classified as prohibited

conduct,’ as long as a person of ordinary intelligence can understand what is

proscribed.” (internal quotation marks omitted) (quoting State v. Padilla, 190 Wn.2d

672, 677, 416 P.3d 712 (2018))). Courts will not strain to construe a statute or

community custody condition as vague simply because different interpretations are

possible. Dixon, 78 Wn.2d at 804-05; see, e.g., State v. Hai Minh Nguyen, 191

Wn.2d 671, 680-81, 425 P.3d 847 (2018). Indeed, we have avoided imposing

State of Washington v. Jeffries-Porter, No. 104576-0

(Stephens, C.J., dissenting)

“‘[i]mpossible standards of specificity,’” in large part because “language always

involves some degree of vagueness.” Bahl, 164 Wn.2d at 759 (internal quotation

marks omitted) (quoting State v. Halstien, 122 Wn.2d 109, 118, 857 P.2d 270

(1993)).

This approach follows the tenet that the vagueness doctrine “is not a principle

designed to convert into a constitutional dilemma the practical difficulties in drawing

criminal statutes both general enough to take into account a variety of human

conduct and sufficiently specific to provide fair warning that certain kinds of conduct

are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d

584 (1972). We do not willingly walk into a constitutional crisis by construing

language broadly; rather, we endeavor to avoid constitutional concerns by

considering language in context. With respect to community custody conditions, the

context necessary to ascertain the meaning of a term used to proscribe the conduct

of a criminal defendant includes the nature of the conviction, language used in

related statutes, and, when appropriate, dictionary definitions of the words or phrases

used in similar contexts.

The phrase “sexually exploitive materials” is sufficiently clear when

considered in proper context. In Washington, the term “sexual exploitation” is used

in only one context in the criminal statutes and is uniquely tied to minors. See, e.g.,

RCW 9.68A.040 (defining the scope of “sexual exploitation of a minor”); RCW

State of Washington v. Jeffries-Porter, No. 104576-0

(Stephens, C.J., dissenting)

9.68A.011(8)2 (defining “sexually explicit conduct” in the context of sexual

exploitation of a minor). The majority points to other statutes describing

exploitation, but these neither reference nor define “sexual exploitation,” a term used

exclusively in the context of crimes involving minors. See, e.g., RCW

74.34.020(2)(a)-(d) (defining forms of abuse in the context of vulnerable adults as

“sexual abuse” and separate from “personal exploitation”), (2), (7) (defining

“abuse,” “personal exploitation,” and “financial exploitation”). Jeffries-Porter was

convicted of first-degree child molestation. It therefore follows that the “‘animating

context of [the] well-defined usage’” of “sexually exploitive materials” logically

refers to materials that depict the sexual exploitation of a minor. Dixon, 78 Wn.2d

at 805 (quoting Beauharnais, 343 U.S. at 253); State v. J.H.-M., 4 Wn.3d 648, 661,

566 P.3d 847 (2025) (recognizing that the “facts of the underlying criminal offense”

provide “context to the prohibitions that would apply”).

The majority rejects the relevance of statutes using the phrase “sexual

exploitation” in connection with minors on the ground that these statutes were not

charged or referenced explicitly in the community custody condition. Majority at

13-14. No such requirement exists in our case law. To the contrary, in Bahl we

State of Washington v. Jeffries-Porter, No. 104576-0

(Stephens, C.J., dissenting)

considered a statute that was not charged or explicitly referenced as part of the

context in which the phrase “sexually explicit” was used, declining to consider

whether, standing alone, this definition would provide sufficient notice to satisfy our

vagueness inquiry. 164 Wn.2d at 760. The analysis is more nuanced than the

majority would allow. We have never adopted an explicit cross-referencing

requirement largely because our vagueness inquiry is not so formalistic. In Bahl we

drew on statutory and dictionary definitions the condition never cited, id. at 759-60;

in J.H.-M. we considered the facts of the underlying conviction, 4 Wn.3d at 661; and

while the condition in Nguyen happened to reference statutory definitions, nothing

in our analysis suggested the reference was necessary to survive a vagueness

challenge, 191 Wn.2d at 684-85.

In concluding that the condition at issue violates Jeffries-Porter’s First

Amendment rights, the majority seems to collapse the due process vagueness inquiry

under the Fourteenth Amendment with an overbreadth analysis under the First

Amendment. Majority at 19-20. While “vagueness and overbreadth may sometimes

overlap,” they are nonetheless distinct inquiries that impose discrete constitutional

requirements. J.H.-M., 4 Wn.3d at 654-55. The majority holds that the condition at

issue here is vague and then, based on the broadest possible reading of the phrase

“sexually exploitive materials,” concludes that it therefore must implicate JeffriesPorter’s First Amendment rights. Majority at 9-10, 19-21. This line of reasoning

State of Washington v. Jeffries-Porter, No. 104576-0

(Stephens, C.J., dissenting)

fails to account for the statutory definition of “sexual exploitation” that is used only

in the context of minors and therefore suggests a narrower definition of “sexually

exploitive materials” limited to materials that do not enjoy First Amendment

protections. New York v. Ferber, 458 U.S. 747, 764, 102 S. Ct. 3348, 73 L. Ed. 2d

1113 (1982) (holding that child pornography falls outside the protections of the First

Amendment); cf. RCW 9.68A.001 (“The definition of ‘sexually explicit conduct’

and other operative definitions demarcate a line between protected and prohibited

conduct and should not inhibit legitimate scientific, medical, or educational

activities.”).

Even accepting that the condition at issue could be read broadly to encompass

other materials that enjoy First Amendment protection, that does not mean that it is

vague or overbroad. State v. Pauling, 149 Wn.2d 381, 389, 69 P.3d 331 (2003) (“A

statute will be invalidated only if the court is unable to limit sufficiently its

standardless sweep by a limiting construction.”). Rather, as discussed, reading the

condition in the context of Jeffries-Porter’s conviction and related statutes, a person

of ordinary intelligence can discern between materials depicting sexual exploitation

and “‘[c]ountless works of art, literature, film, and music.’” Nguyen, 191 Wn.2d at

680 (alteration in original). The majority’s insistence on an explicit cross-reference

to statutes that define sexual exploitation is unsupported by our precedent and results

State of Washington v. Jeffries-Porter, No. 104576-0

(Stephens, C.J., dissenting)

in invalidating a provision that plainly addresses a crime-related risk posed by

Jeffries-Porter.

CONCLUSION

The majority concludes that a person convicted of first-degree child

molestation cannot understand what a prohibition on “sexually exploitive materials”

forbids. It reaches that result by demanding an explicit cross-reference our cases

have never required and by allowing overbreadth concerns to distort a distinct

vagueness inquiry. Our vagueness analysis has never demanded perfection in

drafting. It requires fair notice and ascertainable standards, judged in context,

including the nature of the conviction, related statutes, and ordinary dictionary

meanings. A person in Jeffries-Porter’s position, reading the prohibition against the

backdrop of his convictions and related statutes, understands what it forbids:

materials depicting the sexual exploitation of a minor. Due process requires nothing

more.

Accordingly, I respectfully dissent.

State v. Jeffries-Porter

Authorities cited

Opinion · public domain