Osborne v. Ohio

Appellant
Clyde Osborne
Appellee
State of Ohio
Appellant's Claim
That an Ohio law banning the possession of child pornography violated the First Amendment.
Chief Lawyer for Appellant
S. Adele Shank
Chief Lawyer for Appellee
Ronald J. O'Brien
Justices for the Court
Harry A. Blackmun, Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, Byron R. White (writing for the Court)
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
18 April 1990
Decision
The Court upheld the constitutionality of the Ohio law, but ordered Osborne to be retried because of procedural errors during the trial.
Significance
The Court made an exception to an earlier ruling that said individuals have First Amendment protection to possess obscenity in their homes. States have aright to fight the production and distribution of child pornography by makingits possession illegal.
Ideas and images are protected as free speech under the First Amendment, butthe Supreme Court has long held that the constitutional protection of speechis not absolute. Obscenity is one type of expression that states can regulate. The Court has made a distinction between pornography and obscenity. Although both usually involve sexual images, pornography is protected, but obscenityis not. The toughest legal issue, however, has been defining what constitutes obscene material.
In Miller v. California (1973), the Court established a three-part test to determine when expression is not protected. Material is obscene if a typical member of the community would find it prurient, if it depicts sexual activity in a patently offensive way, and if the work, taken as whole, has no literary, artistic, political, or scientific value. Material that fits all three qualifications could be banned. But four years before the Miller ruling the Court had said that although some material might be obscene and illegal, the mere possession of it was not.
The decision in Stanley v. Georgia (1969) overturned a Georgia law that made it a crime to possess obscene materials. The Court used both free speech and right-to-privacy arguments to strike down the law. But as Clyde Osborne learned years later, the Stanley decision, like First Amendment protection in general, was not absolute.
Osborne's Pictures
Osborne received through the mail four pictures of a naked 14-year-old boy insexually suggestive poses. Acting on a tip from a postal inspector, the Columbus, Ohio police obtained a search warrant, raided Osborne's home, and foundthe pictures. The police arrested him under an Ohio law prohibiting the possession of any material featuring a naked minor, if the suspect is not the child's parent or if the parents have not given written consent for the child toappear in the material. (The law exempted material with artistic, scientific, educational, or other merit.)
At Osborne's trial, his lawyer contested that the law was overbroad and vague. "Judge, if you had some nude photos of yourself when you were a child, youwould probably be violating the law." The judge, however, disagreed. Osbornewas convicted and sentenced to six months in prison. He appealed twice, to anappellate court and the Ohio Supreme Court, still arguing that the Ohio lawwas overbroad, and that his First Amendment rights had been denied. Both courts denied his appeal, though the Ohio Supreme Court's ruling narrowed the law's focus. Now the law applied to material showing a "lewd exhibition" of nudity or "graphic focus" on the genitals. But even then, Osborne's pictures wereillegal.
When the case reached the Supreme Court, Osborne's attorney, S. Adele Shank,pointed to the precedent set in Stanley regarding the possession of obscene material. She again attacked the vagueness of the Ohio law. The Court,however, voting 6-3, upheld Osborne's conviction.
At the start of his decision, Justice White warned not to read the Stanley ruling too broadly. Quoting the decisions in that case, he wrote, "We did not `mean to express any opinion on states making criminal possession of other types of printed, filmed, or recorded materials . . . In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.'" Osborne's case, the majority found, was clearly one of those instances.
Child pornography, the Court said, was vastly different from material featuring adults. The Court had already ruled, in New York v. Ferber (1982),that states could prohibit the manufacture and distribution of nonobscene child pornography. Believing child pornography adversely affects the models featured, the Court did not hesitate to limit the freedom granted in Stanley.

Given the importance of the State's interest in protecting thevictims of child pornography, we cannot fault Ohio for attempting to stamp out this vice at all levels in the distribution chain. According to the State,since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution.

White also found that the original Ohio statute was probably not overbroad, given its exemptions for materials with some merit. The state supreme court helped clarify the vagueness issue when it added the clause about lewd exhibitions and graphic focus. But the Court did find one point in Osborne's favor: the trial judge had violated Osborne's due process by giving the jury faulty instructions. Osborne was entitled to a new trial, but the law by which he hadbeen convicted was constitutional.
The Subjectivity of Words
One of the problems with almost all of the Supreme Court decisions regardingobscenity has been defining the concepts of obscenity and pornography. They are abstract and subjective, based on, among other things, the moral and social beliefs of the person or body defining them. In his dissent from Osborne, Justice Brennan focused on this point.
Brennan found the Ohio statute overbroad, both as originally written and thenmodified by the state supreme court. The statute might outlaw a photo of a model wearing transparent clothing or a replica of Michelangelo's famous statue of David, which prominently displays his genitals. Brennan wrote:

It might be objected, that many of these depictions of nudity do not amountto "lewd exhibition." But in the absence of any authoritative definition of that phrase by the Ohio Supreme Court, we cannot predict which ones .. . Indeed, some might think that any nudity , especially that involving a minor, is by definition "lewd," yet this Court has clearly established that nudity is not excluded automatically from the scope of the First Amendment. The Court today is unable to even hazard a guess as to what a "lewd exhibition" might mean.

The issue of child pornography remains highly visible, thanks largely to computers and the Internet. There have been numerous reports of child pornographers using the Internet to spread their product. Electronic media have made traditional notions about the distribution and even "possession" of obscene materials obsolete, though the Court has yet to address First Amendment issues and the Internet.
Related Cases

• Stanley v. Georgia, 394 U.S. 557 (1969).
  
• Miller v. California, 413 U.S. 15 (1973).
  
• New York v. Ferber, 458 U.S. 747 (1982).
  
• Massachusetts v. Oakes, 491 U.S. 576 (1989).