In Re: S.K.

Fader, J. The appellant, then-16-year-old S.K., sent a text message to two friends, both juveniles, containing an approximately one-minute-long digital video file of herself performing fellatio on a presumably-adult male. The Circuit Court for Charles County, sitting as a juvenile court, found S.K. involved in the offenses of distribution of child pornography and displaying an obscene item to a minor. 1 We affirm the juvenile court's finding on distribution of child pornography because we conclude that: (1) S.K. was a "subject" of the video; (2) the law contains no exception applicable when the juvenile is both the subject and distributor of the pornographic material; and (3) S.K.'s conduct is not protected by the First Amendment. We vacate the finding that S.K. was involved in displaying an obscene item to a minor because the statute, which expressly delineates the forms of media it covers, does not cover an electronically-transmitted digital video file. BACKGROUND S.K. sent the digital file at issue to A.T., another 16-year-old girl, and K.S., a 17-year-old boy.

A.T. and K.S. each received the video and viewed at least part of it. The three then-friends, who regularly exchanged "silly" videos and attempted to "outdo" one another, trusted each other to keep these group messages private. Two months later, after the three had a falling out, K.S. and A.T. reported the incident to, and shared a copy of the video with, Officer Eugene Caballero of the Charles County Sheriff's Office, their school resource officer. Officer Caballero met with S.K., who acknowledged having sent the video to K.S. and A.T. S.K. expressed concern to Officer Caballero that other people had seen the video because, according to both S.K. and A.T., K.S. had by that time shared the video with other students.

The State charged S.K. with (1) filming a minor engaging in sexual conduct in violation of § 11-207(a)(2) of the Criminal Law Article (2012 Repl.), (2) distributing child pornography in violation of § 11-207(a)(4) of the Criminal Law Article, and (3) displaying an obscene item to a minor in violation of § 11-203(b)(1)(ii) of the Criminal Law Article. 2 At the adjudicatory hearing, after taking testimony from A.T., K.S., and Officer Caballero and viewing the video, the juvenile court granted S.K.'s motion for acquittal as to the offense of filming a minor engaged in sexual conduct, but found S.K. involved in distributing child pornography and displaying an obscene item to a minor. In a subsequent disposition hearing, the court found S.K. to be delinquent and placed her on probation with several conditions, including that she undergo a psychiatric evaluation. S.K. appeals those findings. DISCUSSION We apply the same evidentiary standard in juvenile delinquency cases that we apply in criminal cases.

In re Elrich S. , 416 Md. 15 , 30, 5 A.3d 27 (2010). "[T]he judgment of the [trial court] will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the [trial] court to judge the credibility of the witnesses." Brownv. State , 234 Md. App. 145 , 152, 170 A.3d 829 (2017) (quoting Dixon v. State , 302 Md. 447 , 450, 488 A.2d 962 (1985) ). "When the trial court's order 'involves an interpretation and application of Maryland statutory and case law,' " we review the trial court's legal conclusions de novo.

Nesbit v. Gov't Employees Ins. Co. , 382 Md. 65 , 72, 854 A.2d 879 (2004) (quoting Walter v. Gunter , 367 Md. 386 , 392, 788 A.2d 609 (2002) ). I. THE JUVENILE COURT DID NOT ERR IN FINDING S.K. INVOLVED IN THE DISTRIBUTION OF CHILD PORNOGRAPHY . As relevant here, § 11-207(a)(4)(i) prohibits a "person" from knowingly distributing "any matter, visual representation, or performance ... that depicts a minor engaged as a subject in ... sexual conduct." 3 S.K. argues that her conduct does not fall within the prohibition of this statute both because she was not a "subject" of the video and because the provision's legislative history suggests that it was not intended to cover the distribution by a minor of material depicting his or her own consensual sexual conduct.

Based on the plain language of the statute, neither of these arguments has merit. We also reject S.K.'s contention that her conduct is protected by the First Amendment to the United States Constitution. A. The Plain Meaning of "Engaged as a Subject" in § 11-207(a)(4)(i) Requires That a Minor Must Appear in the Material at Issue. S.K. first contends that her conduct did not run afoul of § 11-207(a)(4)(i) because she was not "engaged as a subject" in the video.

According to S.K., "subject," in the context of this statute, means "a minor who is unable to lawfully consent to sexual relations or who is forced to engage in sexual conduct against his or her will." Because she consented to the sexual conduct depicted, she argues, the statute is not implicated. 4 The State contends that "subject" instead means a person or thing of concern, and that S.K. was a "subject" of the video because she was featured in it. Both parties rely on dictionary definitions for support. In resolving this question of interpretation, we apply the standard tools of statutory construction. State v. Bey , 452 Md. 255 , 265, 156 A.3d 873 (2017).

We ascertain legislative intent by affording "words their natural and ordinary meaning," Davis v. State , 426 Md. 211 , 218, 43 A.3d 1044 (2012), and "neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute," Bey , 452 Md. at 265 , 156 A.3d 873 (quoting State v. Johnson , 415 Md. 413 , 421, 2 A.3d 368 (2010) ). In doing so, we interpret the "statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory." Moore v. State , 388 Md. 446 , 453, 879 A.2d 1111 (2005). We do not interpret statutory language in isolation, but view it "within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute." Bey , 452 Md. at 266 , 156 A.3d 873 (quoting Johnson , 415 Md. at 421 -22 , 2 A.3d 368 ). Where the legislative intent "is clear from the words of the statute, our inquiry normally ends and we apply the plain meaning of the statute." State v. Neiswanger Mgmt.Servs., LLC , 457 Md. 441 , 458-59, 179 A.3d 941 (2018) (quoting Huffman v. State , 356 Md. 622 , 628, 741 A.2d 1088 (1999) ).

But if a statute is ambiguous, "we consult other indicia of legislative intent, including ... legislative history, the context of the statute within the broader legislative scheme, and the rationality of competing constructions." In re Tyrell A. , 442 Md. 354 , 362, 112 A.3d 468 (2015). Our "interpretation must be reasonable, not 'absurd, illogical or incompatible with common sense.' " Neiswanger Mgmt. Servs. , 457 Md. at 459 , 179 A.3d 941 (quoting Lockshin v. Semsker , 412 Md. 257 , 276, 987 A.2d 18 (2010) ). Applying these principles, we consider the plain language of "engaged as a subject" in the context of the entirety of § 11-207(a), which provides that "[a] person may not": (1) cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter or a visual representation or performance that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; (2) photograph or film a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct; (3) use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct; (4) knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance: (i) that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or (ii) in a manner that reflects the belief, or that is intended to cause another to believe, that the matter, visual representation, or performance depicts a minor engaged as a subject of sadomasochistic abuse or sexual conduct; or (5) use a computer to knowingly compile, enter, transmit, make, print, publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, statement, advertisement, or minor's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of engaging in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or sexual conduct of or with a minor.

The phrase "engage(d) as a subject" appears four times: twice in § 11-207(a)(1), and once each in § 11-207(a)(4)(i) & (ii). Although not dispositive, dictionary definitions "provide[ ] a useful starting point" for statutory interpretation. Montgomery Cty. v. Deibler , 423 Md. 54 , 67, 31 A.3d 191 (2011) (quotation omitted). S.K. relies on definition (1) of "subject" from Merriam-Webster (online) as meaning "one that is placed under authority or control," but she fails to cite the remainder of the definition.

The full definition (1) of "subject" is: 1: one that is placed under authority or control: such as a : VASSAL b (1) : one subject to a monarch and governed by the monarch's law (2) : one who lives in the territory of, enjoys the protection of, and owes allegiance to a sovereign power or state Merriam-Webster (online) , "subject," available at https://www.merriam-webster.com/dictionary/subject (last visited May 30, 2018). S.K. also cites definition (1) from Black's Law Dictionary, which provides: "Someone who owes allegiance to a sovereign, esp. a monarch, and is governed by that sovereign's laws; one who is under the governing power of another Black's Law Dictionary , "subject," at 1651 (10th ed. 2014). From these definitions, S.K. contends that "subject" in § 11-207 must mean someone who is improperly placed under the authority of another by engaging in sexual conduct either before the age of consent or, if of age, without consent. Although creative, S.K.'s argument bends the dictionary definitions she cites past the breaking point.

In each of these definitions, "subject" is tied to the concept of being under the political authority of a sovereign power. Reading that meaning into § 11-207(a) would produce absurd results. It would also be inconsistent with the grammatical structure of the phrase "engaged as a subject." See Moore , 388 Md. at 457 -60 , 879 A.2d 1111 (relying in part on an analysis of grammatical structure to identify the plain meaning interpretation of terms). A person is the subject of a sovereign power; she or he is not engaged as a subject in that sense.

The State points us to two other dictionary definitions of "subject": (1) "[t]he matter of concern over which something is created," Black's Law Dictionary , "subject," at 1651; and (2) "A person or thing that is being discussed, described, or dealt with," Oxford Dictionaries (online) , "subject," available at https://en.oxforddictionaries.com/definition/subject (last visited May 30, 2018); see also New Oxford American Dictionary , "subject," at 1733 (3d ed. 2010) (same); Merriam-Webster's Collegiate Dictionary "subject," at 1243 (11th ed. 2014) ("something concerning which something is said or done"); American Heritage Dictionary , "subject," at 1735 (5th ed. 2011) ("One concerning which something is said or done; a person or thing being discussed or dealt with: a subject of gossip"). These definitions are consistent with the "ordinary and popular" usages of the term, Deibler, 423 Md. at 67 , 31 A.3d 191 , and, unlike the definitions proffered by S.K., do not lead to absurd results. Consistent with these definitions, a minor is "engaged as a subject" in sexual conduct if she or he is a participant in, or the object of, such conduct. These definitions also accord with how the Supreme Court, our Court of Appeals, and this Court have discussed the government's interests in combating child pornography.

See, e.g. , New York v. Ferber , 458 U.S. 747 , 758, 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982) (discussing the legislative judgment regarding harm from "the use of children as subjects of pornographic materials") (emphasis added); Outmezguine v. State , 335 Md. 20 , 37, 641 A.2d 870 (1994) (" Outmezguine II ") (discussing the State's "significant interest ... in prohibiting the use of children as subjects in pornographic material") (internal citations omitted; emphasis added); Outmezguine v. State , 97 Md. App. 151 , 159, 627 A.2d 541 (1993) (" Outmezguine I ") (discussing the legislative focus "on the use of children as the subjects of pornographic material") (emphasis added), aff'd , 335 Md. 20 , 641 A.2d 870 (1994). Based on the plain language of the statute, we therefore conclude that S.K. was "engaged as a subject in ... sexual conduct" in the video at issue. Although it is not necessary to consider legislative history, doing so confirms our plain language interpretation. See Moore , 388 Md. at 460 , 879 A.2d 1111 (using legislative history to "bolster[ ]" conclusion as to plain meaning).

In 1978, the General Assembly created § 419A of former Article 27, the predecessor of current § 11-207, to address child pornography trafficking and curtail the sexual exploitation of minors. See 1978 Md. Laws, ch. 573 ("Chapter 573"); Outmezguine I , 97 Md. App. at 159 , 162 , 627 A.2d 541 . As originally drafted, House Bill 9, which became Chapter 573, provided: "Every person who causes or knowingly permits a child under 18 years of age to engage in the production of obscene matter is subject to the penalty provided in subsection (d)." The bill was then amended to add "as a subject" after "engage," among other changes. See Chapter 573.

The reason for the addition appears obvious: As originally drafted, the language could conceivably have been read to criminalize the use of minors in any aspects of production, perhaps including ordering supplies or making photocopies. Whatever one might think of the merits of such a law, the focus of legislatures at that time was, as Judge Wilner subsequently identified, "on the use of children as the subjects of pornographic material," Outmezguine I , 97 Md. App. at 159 , 627 A.2d 541 , and not in other aspects of production. Today's § 11-207 is a direct descendant of the original § 419A. Although the statute has been substantially revised and expanded through several rounds of revision, the use of the phrase "engaged as a subject" has carried through to the current § 11-207(a)(4)(i). 5 Legislative history thus confirms our interpretation of that language as requiring only that a minor appear as a participant in, or object of, sexual conduct or sadomasochistic abuse, not that there was an absence of lawful consent.

B. Section 11-207(a)(4)(i) Does Not Contain an Exception for Material Depicting a Minor Who Is Legally Engaged in Consensual Sexual Activity. S.K. next argues that legislative history demonstrates that the purpose of § 11-207(a)(4)(i) is "to criminalize the actions of child abusers, not the children who are depicted in the imagery." Thus, she contends, the law cannot be applied to individuals who, like her, were engaged in consensual sexual conduct. Regardless of whether S.K.'s argument may have merit as a matter of policy, it has no merit as a matter of statutory construction. Section 11-207(a)(4)(i) prohibits any person from knowingly distributing "any matter ... that depicts a minor engaged as a subject in ... sexual conduct." The law is not limited to non-consensual or abusive conduct and it contains no exception where the minor depicted is also the distributor.

To adopt S.K.'s argument would require us to read a non-existent exemption into the statute's unambiguous text. That is not our role. See Rodriguez v. Cooper , 458 Md. 425 , 182 A.3d 853 , 867 (Md. 2018) ("[W]e decline to insert a qualification in the statute that the Legislature did not include in the text."). S.K.'s reliance on legislative history to provide a different interpretation of § 11-207(a)(4)(i) thus fails for the simple reason that the statute is not ambiguous.

Moreover, even if we were to look beyond the statute's plain language, it does not support S.K.'s contention. Proving a legislative intent to target child abuse is a far cry from proving a legislative intent to protect child pornography that depicts consensual conduct. Indeed, S.K. does not identify any legislative history even suggesting such an intent. The State's interest in protecting children from sexual exploitation resulting from child pornography is broad: "The State unquestionably has a significant interest in protecting children, and in prohibiting the use of children as subjects in pornographic material." Outmezguine II , 335 Md. at 37 , 641 A.2d 870 (internal citations omitted).

This interest has led other courts to affirm convictions even when the conduct at issue was consensual. See, e.g. , A.H. v. State , 949 So.2d 234 , 235 (Fla. Dist. Ct. App. 2007) (affirming delinquency adjudication of a 16-year-old who digitally photographed herself and her 17-year-old boyfriend engaged in sexual behavior, even though neither shared the images with any third party).

The Supreme Court of Washington reached the same conclusion we reach today in State v. Gray , 189 Wash.2d 334 , 402 P.3d 254 (2017). There, a 17-year-old who, unsolicited, sent an image of his erect penis to an adult woman, was charged under a Washington law that prohibited "[a] person" from developing or disseminating depictions of "a minor engaged in an act of sexually explicit conduct." Id. at 256-57 ; Wash. Rev. Code. § 9.68A.050. Gray, like S.K. here, argued that the law did not apply to him.

Gray, 402 P.3d at 256 . The court disagreed, concluding that the plain language of the statute unambiguously "extends to any person who disseminates an image of any minor." Id. Moreover, the court observed that, had the statute been ambiguous, it would have reached the same conclusion because the legislature's interest in ending child exploitation " 'extend[ed] to stamping out the vice of child pornography at all levels in the distribution chain,' " which "includes at its inception." Id. at 259 (quoting Wash. Rev. Code § 9 .68A.001(2) ).

The State has an indisputable interest in protecting minors from exploitation "as subjects in pornographic material," Outmezguine II , 335 Md. at 37 , 641 A.2d 870 , whether at the hands of others or by their own conduct, Gray , 402 P.3d at 259 ; see also A.H. , 949 So.2d at 238 (observing that the Florida legislature had identified a "compelling interest" in ensuring that videos or pictures of "sexual conduct by a child of less than 18 years of age [are] never produced"). Indeed, S.K. was apparently so disturbed when she learned that her video was circulated more broadly than she intended that she missed significant school time. As the Supreme Court has recognized, the harm associated with child pornography does not end with its production, but continues with each instance of circulation. 6 Ferber , 458 U.S. at 759 , 102 S.Ct. 3348 ; see also Gray , 402 P.3d at 259 (observing the legislative goal to "destroy the blight of child pornography everywhere, from production of the images to commercial gain"). Unless and until the General Assembly exempts from the reach of the statute minors who distribute materials depicting their own consensual sexual conduct, that conduct is prohibited by the plain language of § 11-207(a)(4)(i).

C. Minors Do Not Enjoy a First Amendment Right to Distribute Pornographic Images of Themselves. S.K. contends that even if her conduct was prohibited by the statute, it was protected by the First Amendment. She argues that child pornography only falls outside the protection of the First Amendment if it is obscene or depicts child abuse, and that the video recording her legal and consensual act of fellatio is neither. Explaining why we disagree requires a brief exploration of the evolution of the child pornography exception to the "general rule" that pornography "can be banned only if obscene." Ashcroft v. Free Speech Coal. , 535 U.S. 234 , 240, 122 S.Ct. 1389 , 152 L.Ed.2d 403 (2002).

In Miller v. California , the Supreme Court established guidelines for determining when material is obscene and, therefore, falls outside the protection of the First Amendment. 413 U.S. 15 , 24-26, 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973). The test is: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. at 24 , 93 S.Ct. 2607 (internal quotation marks and citations omitted). "The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the 'sensibilities of unwilling recipients' from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws." Ferber , 458 U.S. at 756 , 102 S.Ct. 3348 (quoting Miller , 413 U.S. at 18 -19 , 93 S.Ct. 2607 ).

The joint foci of the Miller test are thus the impact of the materials on potential viewers and any social value the materials might have. That test is not designed to protect the subjects depicted in the material themselves. In Ferber , the Court wrestled with whether child pornography was protected by the First Amendment unless obscene, similar to all other types of pornography, or whether it falls outside the protection of the First Amendment even if not obscene. Id. at 753 , 102 S.Ct. 3348 .

Mr. Ferber, the owner of an adult bookstore, was prosecuted for selling two "films ... devoted almost exclusively to depicting young boys masturbating." Id. at 751-52 , 102 S.Ct. 3348 . Although a jury found the films not to be obscene, it convicted Mr. Ferber of dissemination of child pornography. Id. at 752 , 102 S.Ct. 3348 . The Supreme Court held that child pornography constitutes a separate category of speech that falls outside the protection of the First Amendment, and so upheld the conviction.

Id. at 764 , 102 S.Ct. 3348 . The Court identified five bases for its conclusion "that the States are entitled to greater leeway in the regulation of pornographic depictions of children" than other pornographic depictions. Id. at 756 , 102 S.Ct. 3348 . First, the Court found it "evident beyond the need for elaboration that a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling.' " Id. at 756-57 , 102 S.Ct. 3348 (quoting Globe Newspaper Co. v. Superior Court , 457 U.S. 596 , 607, 102 S.Ct. 2613 , 73 L.Ed.2d 248 (1982) ).

"The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Ferber , 458 U.S. at 757 , 102 S.Ct. 3348 . The Court declined to second-guess the "legislative judgment, as well as the judgment found in the relevant literature, [ ] that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child." Id. at 758 , 102 S.Ct. 3348 . That judgment "easily passes muster under the First Amendment." Id. Second, the Court observed that the distribution of child pornography and films depicting juvenile sexual activity "is intrinsically related to the sexual abuse of children," both because the materials "are a permanent record of the children's participation" in the activity and because the production of materials that harm children would not likely stop until the distribution network is closed.

Id. at 759 , 102 S.Ct. 3348 . Notably, the Court further observed that the State's interest in prohibiting obscenity and its interest in prohibiting child pornography are different, as the former seeks to protect the recipients of the material while the latter focuses on the harm to the children depicted. Id. at 760-61 , 102 S.Ct. 3348 . For that reason, the Miller obscenity test is not necessarily "a satisfactory solution to the child pornography problem." Id. at 761 , 102 S.Ct. 3348 .

Third, "[t]he advertising and selling of child pornography" constitute the economic incentive for its production. Id. To effectively address the uniformly-recognized evil of the production of child pornography, it is thus appropriate to also proscribe its advertising and sale. Id. at 761-62 , 102 S.Ct. 3348 .

Fourth, to the extent that there is any actual value in permitting live performances or reproductions "of children engaged in lewd sexual conduct," that value "is exceedingly modest, if not de minimis ." Id. at 762 , 102 S.Ct. 3348 . Fifth, the Court found that recognizing child pornography as an additional category of speech falling outside the protection of the First Amendment was "not incompatible" with prior First Amendment case law. Indeed, prior case law recognized that there were certain categories of speech in which "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required." Id. at 763-64 , 102 S.Ct. 3348 . That, the Court held, was the case for child pornography, provided the laws at issue adequately define what is prohibited.

Id. at 764 , 102 S.Ct. 3348 . The Supreme Court drew further distinction between the somewhat overlapping categories of child pornography and obscenity in Osborne v. Ohio , recognizing that "the interests underlying child pornography prohibitions far exceed the interests justifying" laws that would prohibit obscene materials featuring adults. 495 U.S. 103 , 108, 110 S.Ct. 1691 , 109 L.Ed.2d 98 (1990). "Given the importance of the State's interest in protecting the victims of child pornography," the Court thus approved of measures to "dry up the child pornography market" and "stamp out this vice at all levels in the distribution chain," not merely production and distribution. Id. at 110 , 110 S.Ct. 1691 .

Thus, whereas the government may not constitutionally criminalize the possession (as opposed to the production, distribution, or sale) of material that is merely obscene, it may "constitutionally proscribe the possession and viewing of child pornography." Id. at 111 , 110 S.Ct. 1691 . Almost three decades after Ferber , the Court addressed Congress's effort to prohibit "virtual child pornography" through a section of the Child Pornography Prevention Act of 1996 ("CPPA"). Free Speech Coal. , 535 U.S. at 241 , 122 S.Ct. 1389 . In contrast to the law at issue in Ferber , which prohibited materials depicting actual children, the CPPA targeted sexually explicit images that only appeared to depict minors, including images of adults pretending to be minors and computer-generated images.

Id. at 239-40 , 122 S.Ct. 1389 . In cataloguing the differences between the CPPA and laws of the type approved of in Ferber , the Court began with the obvious: The images covered by the CPPA "do not involve, let alone harm, any children in the production process[.]" Id. at 241 , 122 S.Ct. 1389 . Indeed, the Court observed, the category of speech prohibited by the CPPA was not conduct at all, but the "idea ... of teenagers engaging in sexual activity," an idea "that is a fact of modern society and has been a theme in art and literature throughout the ages." Id. at 246 , 122 S.Ct. 1389 . The Court ultimately held this provision of the CPPA unconstitutional because it "covers materials beyond the categories recognized