Osborne v. Ohio

Osborne v. Ohio
Supreme Court of the United States
Argued December 5, 1989 Decided April 18, 1990
Full case name: Clyde Osborne v. State of Ohio Citations: 495 U.S. 103 Prior history: Conviction affirmed by the Ohio Court of Appeals and Ohio Supreme Court. Defendant appealed to the U.S. Supreme Court. Subsequent history: Statute upheld; case remanded for new trial.
Holding
The First Amendment allows states to outlaw the mere possession, as distinct from the distribution, of child pornography.
Court membership
Chief Justice: William Rehnquist Associate Justices: Byron White, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter
Case opinions
Majority by: White Joined by: Rehnquist, Blackmun, O'Connor, Scalia, Kennedy Concurrence by: Blackmun Dissent by: Brennan Joined by: Marshall, Stevens
Laws applied
First Amendment

Osborne v. Ohio, 495 U.S. 103 (1990), upheld the constitutionality of laws banning the possession of child pornography against a challenge under the First Amendment. In so doing, the Court extended the holding of New York v. Ferber, 458 U.S. 747 (1982), which had upheld laws banning the distribution of child pornography against a similar First Amendment challenge, and distinguished Stanley v. Georgia, 394 U.S. 557 (1969), which had struck down a Georgia law forbidding the possession of pornography by adults in their own homes. The Court also determined that the Ohio law at issue was not overbroad, relying on a narrowing interpretation of the law the Ohio Supreme Court had adopted in prior proceedings in the case. However, because it was unclear whether the State had proved all the elements of the crime, the Court ordered a new trial.

Facts

After obtaining a warrant to search Osborne's home, police in Columbus, Ohio, found four photographs. Each of these photographs depicted a "nude male adolescent posed in a sexually explicit position." Osborne was sentenced to six months in prison.

The statute under which Osborne was convicted forbade the possession and viewing of "any material or performance that shows a minor who is not the person's child or ward in a state of nudity," except if the material or performance had a "bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance." The statute also exempted possession or viewing if the parents of the child gave permission in writing.

The Ohio Supreme Court affirmed Osborne's conviction. It rejected Osborne's argument that the First Amendment prohibited the State from outlawing the possession of child pornography. It also rejected his contentions that the statute was overbroad, and that the judge did not instruct the jury on all the elements of the crime. Osborne asked the Supreme Court to review his case, and it agreed to do so.

Majority opinion

In Stanley v. Georgia, 394 U.S. 557 (1969), the Court struck down a law forbidding the private possession of adult pornography entirely within the home. Faced with Osborne's First Amendment challenge, the Court cautioned that "Stanley should not be read too broadly." Child pornography has very little societal value, and the government's interest in banning child pornography is stronger than the government's interest in banning adult pornography. In Stanley, the government had sought to ban adult pornography because it believed that such material would poison the minds of those who viewed it. But such justification could not stand in the face of the First Amendment, because the government has no power to "premise legislation on the desirability of controlling a person's private thoughts."

With respect to child pornography, however, the government does not act out of a "paternalistic interest" in regulating a citizen's mind. By outlawing the possession of child pornography, the government seeks to eradicate legitimate harms by diminishing the market for child pornography. These harms include the psychological damage to children -- both the children depicted in the pornography, for whom the images produced serve as a permanent record of the abuse, and the children whom potential abusers might lure with such images. "Given the importance of the State's interest in protecting the victims of child pornography, we cannot fault Ohio for attempting to stamp out this vice at all levels in the distribution chain."

Even if the First Amendment did not categorically forbid the government to ban the possession of child pornography, Osborne argued that the Ohio statute under which he was convicted was overbroad. A ban on speech is "overbroad" if it outlaws both prohibited speech as well as a substantial amount of legitimate speech. The statute, as written, banned depictions of nudity, and the Court had previously held that nudity was protected expression. But the Ohio Supreme Court had held that the statute only applied to nudity that "constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged" with violating it. Furthermore, the Ohio Supreme Court had required that the defendant had to know that the images depicted children before being convicted of possession of child pornography. By narrowing the scope of the statue in these ways, the Ohio Supreme Court had sufficiently tailored the law only to those images most harmful to children.

However, the Court reversed Osborne's conviction because, after reviewing the record of the trial, it observed that the State did not present evidence that the images were "lewd" within the meaning of the statute. Because lewdness was an essential element of the crime, the State had not satisfied its obligation to prove all the elements of the crime beyond a reasonable doubt.

Dissenting opinion

Justice Brennan disputed that the terms "lewd" and "graphic focus" were not vague by pointing to the subjective nature of these terms.

External links

• Text of the opinion, findlaw.com
• Text from LII, Cornell University
• Audio file (mp3) of oral argument

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