Osborne v. Ohio

One of the problems with almost all of the Supreme Court decisions regarding obscenity 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 then modified 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 amount to "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.