Osborne v. Ohio, 495 U.S. 103 (1990)

The Supreme Court in Stanley v. Georgia (1969) constitutionally protected the private possession of obscene materials by individuals in their residences. New York v. Ferber (1982) declared that sexually explicit materials or performances involving minors, regardless of whether they were obscene or not, had ‘‘exceedingly modest, if not de minimus’’ social value compared to Compelling State Interests in the welfare of minors, and thus did not warrant First Amendment protections.

Osborne’s appeal asked whether Stanley trumped Ferber: Was the private possession of sexually explicit photographs of minors constitutionally protected? Osborne was convicted of violating Ohio’s law, which stated: ‘‘No person shall ... [p]ossess or view any material or performance that shows a minor who is not the person’s child or ward in a state of nudity.’’ The police armed with a search warrant found four photographs of nude male adolescents in sexually explicit positions in Osborne’s house. His trial conviction was affirmed by Ohio’s appellate courts.

The Supreme Court reversed Pope’s conviction and remanded the case for further consideration. This ruling, however, did not rest on Osborne’s First Amendment arguments, which the majority found ‘‘unpersuasive,’’ but on due process grounds; the jury was not properly instructed on the elements of Ohio’s law that had to be proved. The vote was six to three, with White writing for Rehnquist, Blackmun, O’Connor, Scalia, and Kennedy. Brennen wrote a dissent that Marshall and Stevens joined.

White argues that Stanley does not extend to Pope’s possession of photographs of nude minors by distinguishing Ohio’s law from Georgia’s law. The latter prohibited the private possession of obscenity because of Georgia’s concerns that obscenity ‘‘would poison the minds of its viewers,’’ and accordingly was unconstitutional since the law sought to control a person’s private thoughts. Ohio’s law, in contrast, in order to protect the victims of child pornography was designed to ‘‘destroy a market for the exploitative use of children’’ by making it a crime to possess and view photographs of nude adolescents. As White notes, Ferber made Ohio’s law necessary because the Court’s decision drove the market for child pornography underground; nineteen other states as a consequence passed laws similar to Ohio’s.

White also dismissed Pope’s argument that the law was overbroad. Ohio’s Supreme Court had interpreted the law as limited to the lewd exhibition of or graphic attention to the genitals of nude minors who were neither the children nor wards of the persons charged with violating the law. Persons viewing or possessing ‘‘innocuous photographs of naked children,’’ White emphasized, would not be penalized under the law.

ROY B. FLEMMING

Cases and Statutes Cited

• New York v. Ferber, 438 U.S. 747 (1982)
• Stanley v. Georgia, 394 U.S. 557 (1969)