Osborne v. Ohio

The Court made an exception to an earlier ruling that said individuals have First Amendment protection to possess obscenity in their homes. States have a right to fight the production and distribution of child pornography by making its possession illegal.

Ideas and images are protected as free speech under the First Amendment, but the Supreme Court has long held that the constitutional protection of speech is 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 obscenity is 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.