Osborne v. Ohio

Osborne received through the mail four pictures of a naked 14-year-old boy in sexually suggestive poses. Acting on a tip from a postal inspector, the Columbus, Ohio police obtained a search warrant, raided Osborne's home, and found the 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 to appear 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, you would probably be violating the law." The judge, however, disagreed. Osborne was convicted and sentenced to six months in prison. He appealed twice, to an appellate court and the Ohio Supreme Court, still arguing that the Ohio law was 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 were illegal.

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 the victims 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 had been convicted was constitutional.