*1 OSBORNE OHIO April Argued December 1989 Decided No. 88-5986. *3 Rehnquist, Court, J., opinion of the in which White, delivered Kennedy, JJ., Scalia, joined. Blackmun, O’Connor, J., and C. J., Brennan, 126. Blackmun, J., concurring opinion, post, p. filed a Stevens, JJ., joined, opinion, in which Marshall dissenting filed a p. post, 126. her for With the cause appellant. Adele Shank argued
S. Dana, M. Quigley, Randall John were on the briefs Goldberger. David argued a brief cause and filed O’Brien
Ronald J. appellee.* opinion of the Court. delivered the White
Justice pornography, enacted Rev. to combat child In order 2907.323(A)(3) provides (Supp. 1989), which Ann. Code pertinent part:
“(A) any following: person do No shall
“(3) any performance that or material or Possess view person’s or ward child shows a minor who is not applies: nudity, following one of state of unless “(a) performance sold, dissemi- The or material brought displayed, possessed, or caused controlled, nated, presented brought fide for bona state, this to be into religious, gov- scientific, educational, artistic, medical, proper judicial, purpose, or to a ernmental, or other sociologist, psychologist, physician, scientist, teacher, pursuing person or research, librarian, fide studies bona having prosecutor, judge, person clergyman, or other performance. proper interest in the material or “(b) parents, guardian, person knows that writing photograph- to the has consented custodian *4 Attorneys amid curiae were filed for the urging affirmance *Briefs of Celebrezze, Jr., by Anthony J. of et al. At- for the State Arizona General Sutter, General, I. Ohio, Attorney and Andrew torney of Assistant General Braverman, Attorneys respective L. for their Loren by and the General A. Butterworth of Arizona, follows: Robert Robert K. Corbin of as States Indiana, Thomas Idaho, Linley T. Jones E. Pearson of James Florida, of M. James Shannon of Iowa, Kansas, Stephan Robert T. J. Miller of of Michigan, William L. Webster of Kelley Frank J. Massachusetts, of Mis- McKay Nevada, Roger Tellinghuisen A. Dakota, Brian souri, South Eikenberry Washington; Family for Kenneth O. the American Asso- and Coleman; ciation, Inc., by Peggy Legal for the Children’s Foundation M. Sears; al. H. Robert by Alan E. for Concerned Women America et Showers, Bird, Lorence, Campbell; W. R. Jordan and Cimron Wendell by Gregory A. and Judith Drazen Loken and for Covenant House al. et Schretter. nudity
ing to the the minor in a state of and or use of performance the material or is used manner which transferred.” Clyde violating this
Petitioner, Osborne, was convicted prison, six after the statute and sentenced to months Co- police, pursuant a valid found four lumbus, Ohio, search, photograph depicts photographs Each in Osborne’s home. sexually explicit posed position.1 nude male adolescent Supreme conviction, The Court affirmed Osborne’s Ohio appellate the after an court did same. State intermediate (1988). Rely- Young, 3d E. 2d Ohio St. 525 N. rejected ing the court first decisions, on one its earlier prohibits that Amendment Osborne’s contention the First proscribing private from of child the States pornography. 2907.323(A)(3) § uncon-
Next, the found is not court stitutionally doing, relying court, overbroad. so 2907.323(A)(3) statutory only apply- exceptions, read nudity ing depictions involving a lewd exhibition or genitals. graphic a minor’s The court also found focus on §2907.323(A)(3) essential of a of- that scienter is an element judge objected trial had not insisted Osborne fense. prove government and scienter as el- lewd exhibition that the rejected of his crime. Court ements object failed to to the because Osborne had these contentions boy; subject pictures is the same contends that in all of Osborne youth testified trial that he was was 14 at the time told that Osborne government photographs App. were taken. 16. The maintains that the pictures boy pictures are of one one of the is of an that three of depict boy photographs positions: in different sit Three the same other. legs exposed; lying his his head his anus down with an ting with over hand; object lying an electrical in his down with a penis and with erect photo anus. appears to be inserted in his The fourth plastic object which boy; it depicts standing subject unclear whether this is the graph nude boy photograph other photographed pictures same in the because the *5 depicts boy’s torso.
108 given not be- jury at his trial and the court did instructions plain proof amounted to error.2 the failures of lieve that rehearing, for Court denied a motion The Ohio stay pending appeal granted We noted Court. this jurisdiction probable 904. last June. 492 U. S.
I
question
is whether Ohio
in this case
The threshold
viewing
constitutionally proscribe
of child
argues,
in
pornography
decision
whether, as Osborne
our
(1969),
Georgia,
compels
Stanley
con
v.
Stanley too have not be read We should holding, ously Stanley see was narrow United (1973), noted that Film, Reels 413 U. S. States v. 200-ft. permitting the value of case, since the decision and, “exceedingly pornography has been characterized child Ferber, York if minimis.” New v. not de modest, (1982). argument, assuming, the sake of But 747, 762 viewing has a First Amendment interest that Osborne pornography, possessing find case we nonetheless this child underlying Stanley child from because the interests distinct justifying prohibitions pornography far exceed interests Every Stanley. Georgia court to address at issue law g., People Geever, See, e. the issue has so concluded. (1988); E. 2d 313, 327-328, Ill. 2d N. unsuccessfully challenges that also raised a number of other Osborne not at issue before this Court. are “firmly Stanley our was We have since indicated that decision Hardwick, in the First Amendment.” Bowers S. grounded
109 (Ala. App.), 637 Ct. Crim. 635, 2d State, Felton 526 So. v. (Ala. parte Felton, 526 So. 2d nom. Ex aff’d sub App. 1988); 768 P. 2d 502, 505, Davis, 53 Wash. v. State (Tex. App. (1989);Savery 2d State, 767 S. W. Supp. 1989); 684 F. Boffardi, United States (SDNY 1988). pri- proscribe sought Georgia primarily Stanley, obscenity that possession it was concerned because
vate obscenity poison S., minds of its viewers. would “[wjhatever power responded of the at 565.4 We public inimical to the of ideas dissemination state to control legislation constitutionally premise public morality, it cannot thoughts.” private controlling person’s desirability on the The State does here is obvious: Id., at 566. The difference regulating rely paternalistic Osborne’s interest on a §2907.323(A)(3)in order to has enacted Rather, Ohio mind. destroy hopes pornography; protect it child the victims of exploitative children. use of market for beyond elaboration that State’s the need for “It is evident psychological physical ‘safeguarding well- and interest in judg- legislative ‘compelling.’ being . . . of a minor’ is judgment literature, is in relevant found as the ment, as well subjects pornographic materials use of children that the physiological, and mental health emotional, to the is harmful easily passes judgment, muster think, we That of the child. Ferber, S., at 756-758 First Amendment.” under the omitted). (citations surely for the reasonable State It is also por- production of child that it will decrease to conclude prod- possess nography penalizes view the if those who it necessary comple was a its ban on Georgia argued also 110) (see infra, that the discussion its ban on distribution ment to State, because, according expo to the public possession law benefited the or crimes of sexual behavior might lead to deviant sure to obscene material empirical evidence found a lack at 566. We sexual violence. 394 U. “ men, deter ‘[a]mong free stated that supporting the latter claim and punish are education and applied prevent crime ordinarily to be rents omitted). (citation Id., at 566-567 the law ....”’ ment for violations of thereby decreasing up- uct, demand. In Ferber, where we outlawing held a New York statute the distribution of child pornography, argument persuasive: we found a similar “The advertising selling provide pornography of child an eco- integral part produc- nomic motive for and are thus an activity throughout illegal tion of such materials, an the Na- rarely suggested Tt *7 tion. has been constitutional speech press immunity speech freedom for extends its to writing integral part used as an of conduct in violation of quoting Giboney Id., valid criminal 761-762, statute.’” at Empire Storage Co., & Ice Osborne contends that the State should use other meas- penalizing possession, dry up por- ures, besides the child nography points Stanley market. Osborne out that in we re- jected Georgia’s argument prohibition obscenity that its possession necessary proscription was a incident to its on ob- scenity holding, distribution. 394 S.,U. at 567-568. This light however, must be viewed in of the weak interests as- by Stanley emphasized serted in State that case. itself express any opinion that we did not “mean to making on statutes possession types printed, criminal of other filmed, compelling or recorded materials .... In such cases, rea- may overriding right sons exist for of the individual to possess Id., those materials.” at n. 11.5 importance protecting
Given the of the State’s interest pornography, the victims of child attempting we cannot fault -Ohiofor stamp out this vice at all levels in the distri- According bution chain. State, to the since the time of our pornography Ferber, decision much of the child market has underground; been driven as a result, it is now if difficult, impossible, pornography problem by not to solve the child only attacking production Indeed, distribution. 19 States post, notes, Stanley As the dissent see n. Court cited possession illicit example type of defense information as an of offense compelling might justify for which state possession. interests a ban on Stanley, however, suggest did that this crime exhausted the entire cat egory proscribable offenses. of this necessary proscribe possession
have found it material.6 First, law. support interests also
Other child by materials produced pornog- Ferber recognized, The por- record the victim’s abuse. raphers permanently child victims con- existence causes the continued nography’s come. 458 years the children haunting harm tinuing en- viewing ban on 759. The State’s S.,U. them. destroy of these materials to courages possessors materials is also the destruction of these Second, encouraging use child suggests evidence pedophiles desirable because other children into sexual activity.7 to seduce pornography context, of the State’s interests this Given the gravity the posses- may constitutionally proscribe we find that Ohio of child pornography. sion and viewing
II if the constitu- next that even State argues Osborne *8 his convic- of child pornography, ban tionally (1989); (1988); § Ann. § Ariz. Rev. Stat. Ala. Code 13A-12-192 (1989); 1989); §827.071 Ga. (Supp. §18-6-403 Fla. Stat. Colo. Rev. Stat. (1987); Stat., (1989); § 111.Rev. § Idaho Code 18-1507 Ann. 16-12-100 Code 1989); (1987); (Supp. §21-3516 Minn. 38, ¶ Ann. 11-20- 1 Kans. Stat. eh. 1989); (1988); §573.037 (Supp. Neb. Rev. §617.247 Mo. Rev. Stat. Stat. (1987); §200.730 (1989); Rev. Code §28-809 Nev. Rev. Stat. Stat. Stat., 21, §1021.2 1989); Tit. (Supp. §§2907.322 and 2907.323 Okla. Ann. (1988); §§22-22-23, 1989); 22-22-23.1 D. Laws Ann. (Supp. S. Codified (1989 1989-1990); Supp. § Ann. 43.26 Utah Code Ann. Tex. Penal Code 76-5a-3(l)(a) (1989); 1989); §9.68A.070 W. Va. (Supp. Wash. Rev. Code (1989). § 61-8C-3 Code example, Pornography, on Attorney Commission General’s part a method of seduc is often used as pornography states: “Child activity engage in sexual A who is reluctant ing child victims. child sexually explicit photos can sometimes be pose for with an adult or to having participating ‘fun’ the ac by viewing other children convinced Report Pornography, Final tivity.” Attorney Commission on General’s omitted). (footnotes (1986) also, Campagna and D. Poffen See D. (1988); O’Brien, Por Trafficking in Children 118 S. Child berger, Sexual (1983). nography 89 §2907.323(A)(3) unconstitutionally is because
tion is invalid range of con- an intolerable it criminalizes that overbroad previous stitutionally protected conduct.8 our decisions discussing doctrine, we overbreadth First Amendment regulates emphasized repeatedly that where a statute have expressive scope not render of the statute does conduct, the only “real, its is not unless overbreadth it unconstitutional judged in the statute’s relation to well, as but substantial ” plainly legitimate sweep. Oklahoma, S. 413U. Broadrick v. margins in- at its Even where a statute 601, 615 inap- expression, fringes protected “facial invalidation is on propriate . . . covers a whole of the statute if the ‘remainder constitutionally proscribable easily range of identifiable and Ferber, atS., . New York v. . . . . .’” conduct. 25. n. pos- prohibit purports on statute, face,
The Ohio its photographs stated of minors. have of “nude” We session protected depictions nudity, more, without constitute Relying supra, expression. Ferber, n. 18. See argues that the statute written observation, Osborne this substantially skeptical are of this claim overbroad. We light exemptions “proper of the statute’s because, substantially may purposes” provisions, the statute be may be, Os- under our cases.9 However overbroad challenge context, permit defendants to In the First we Amendment de grounds, regardless of whether individual on overbreadth statutes constitutionally “The protected. First Amendment conduct is fendant’s exception general an to the rule that overbreadth is doctrine substantial constitutionally may applied be cannot chal a statute person to whom unconstitutionally applied ground on the that it lenge the statute *9 Oakes, (1989). others.” Massachusetts possesses or views the applies The where an individual statute State, person’s the or depiction a minor “who is not child ward.” per moreover, impose liability if material or “[t]he not criminal either does sold, disseminated, controlled, brought displayed, possessed, formance is artistic, state, presented into for a bona brought this or fide or to be caused scientific, educational, governmental, judicial, medical, religious, or other in fails because challenge, event, any borne’s overbreadth the Ohio Court on Os- by the statute, construed scrutiny. survives overbreadth plainly borne’s direct appeal, the statute prohibits Court reading, Under the Ohio Supreme a or performance of material viewing “the or such consti- nudity minor is in state of where nudity, who a a on the gen- a involves focus graphic tutes lewd exhibition or child nor is neither the itals, person depicted and where the 3d, St. the the Ohio charged.” ward of person in the operation E. statute’s 2d, By limiting N. 1368.10 scientist, sociologist, proper purpose, physician, psychologist, a by or to research, librarian, clergy- teacher, or person pursuing fide studies bona having proper in ma- man, prosecutor, person or a interest the judge, other person parents, guardian, knows the performance,” or or “[t]he terial writing photographing to the use of or custodian has in consented per- nudity to the manner in which the material or minor a state of and that, statutory despite the used It is true formance is or transferred.” statute, by its exceptions, imagine circumstances in which the might one If, terms, constitutionally protected example, a conduct. criminalizes parent’s parent gave family picture infant taken while a friend a But, given unclothed, apply. the broad stat- infant was the statute would utory prevalence pornography, it is far from exceptions of child applies constitutionally pro- the statute clear that the instances where enough finding warrant a that the statute significant tected are conduct Oakes, J., Scalia, (opinion joined supra, at 589-590 is overbroad. Cf. dissenting part). J., judgment part concurring Blackmun, very persuasive find Osborne’s contention that statute Nor do we unconstitutionally applies it in instances where viewers overbroad because 2907.323(A)(3) specify § not Although does possessors lack scienter. state, appropriate is the mens provides that recklessness mental Ohio law specifies culpability plainly nor indicates rea “neither where statute 2901.21(B) § Ann. liability.” Rev. Stat. purpose impose Ohio strict (1987). 2907.323(A)(3)is claim that any We also do find merit Osborne’s “minor.” unconstitutionally it not define the term vague because does years Code law, age. Rev. anyone a minor is under Under Ohio §3109.01 Ann. pur ‘proper conclusion “when 10 TheOhio court reached this because (b) 2907.323(A)(3)(a) are consid R. C. poses’ exceptions forth in set ered, significantly. The clear scope prohibited conduct narrows *10 penalizing per- Court avoided manner, Supreme the Ohio this of photographs innocuous sons viewing possessing for language against We have similar upheld naked children. In Ferber, we affirmed in past. the challenges overbreadth it that made a crime under a New York statute a conviction ” “ genitals.’ child’s] of [a ‘lewd exhibition to the promote of term ‘lewd exhibition that S., “[t]he at 751. We noted and, was indeed, in this area not unknown genitals’ the is ex- (1973),] as an U. S. California, in Miller given [v. Id., at 765.11 ample permissible regulation.” of viewing of exceptions the purpose these ... is to sanction morally nude conduct is innocent. depicting minors where that material prohibited not Thus, only conduct which is conduct the statute is e., viewing morally innocent, possession or the described material i. construed, proscription not so prurient purposes. the statute’s is So nudity, depictions all in a state of but rather to outlaw of minors broad 3d, depictions pornography.” 37 which constitute child Ohio St. those 251-252, original). 2d, (emphasis E. at in at N. was, challenge upheld in Ferber against 11 The an overbreadth statute challenged moreover, arguably narrowly less tailored than the statute pro because, 2907.323(A)(3), York law did not this case unlike the New prohibition range exceptions general on lewd exhi vide a broad to Despite exceptions, upheld we the New genitals. bition of this lack necessary often, ever, may law, reasoning if it “[h]ow York clearly reach employ engage [the conduct within the children educational, medical, can produce or artistic works statute] in order to doubt, seriously has been certainty. and it not be known with Yet we suggested, impermissible applications of statute arguably that these within the tiny more materials statute’s amount to than fraction of the reach.” 773. construed, statute, as distinguishes from the stat- The dissent the Ohio “ proscribes statute ‘lewd upheld ground Ferber that the Ohio ute ” nudity’ genitals’ exhibitions of the See rather than ‘lewd exhibitions (emphasis original). The dissent notes that Ohio defines post, at 129 breast, pubic areas, buttocks, nudity depictions of the female include Post, 130. discernibly turgid “in a genitals male state.” and covered specific body agree body this distinction between areas and We do not is the de- constitutionally significant: question The whether parts is crucial lewd, happens genitals to focus on piction depiction not whether however, event, not be any would entitled or the buttocks. Osborne had that the State Court also concluded *11 § to a of 2907.323 scienter order violation prove to establish reck- (A)(3) default statute that specifying on the Ohio based in- lacks an another statutory provision lessness when applies n. on its face See statute supra. tent specification. into brings a mens rea but that omission requirement, lacks the another law that satisfies plainly and is cured play on child laid down Ferber that prohibitions requirement S., element of 458 U. include some scienter. pornography at 765. it was for the Ohio Su impermissible
Osborne contends that §2907.323(A)(3) to its construction preme apply Court the e., the construction of rely to him —i. to narrowed cases, Our his overbreadth claim. evaluating statute when be “may have held that a statute as construed however, long to construction, pro the occurring to conduct applied prior the warning fair to defend vided such affords application n. 7 479, 491, Pfister, Dombrowski v. U. S. ant.” States, (1965) (citations omitted).12 In v. United Hamling Supreme Court opinion relief. The context of the indicates that the Ohio 2907.323(A)(3) ‘nudity’ to a “the as used R. refers believed that term C. 249, 258, 3d genitals.” Young, State v. 37 Ohio St. lewd exhibition the 1363, 1373 525 N. E. 2d that concede, suggests, post, n. do as the dissent see We not of an proscribe family might friend’s the statute as construed (see acknowledge n. infant. picture of an unclothed We innocuous conduct, but as con- might reach such supra) the statute as written that surely photograph would apply because strued the statute would genitals” of graphic the child. or focus on not involve a “lewd exhibition underlying course, rationale over- principle, 12 This accords with challenge normally a defendant to challenges. do not allow breadth We context, however, Amendment applied it In the First law as to others. constitutionally pro that the sensitive nature of have said “[b]ecause we required subject that all have not those overbroad expression, tected we prosecution rights. expression test their For risk free regulations —of society, exercising their merely all and not value to to those transcendent Dombrowski, 486. But once loser.” rights might — pro- construed, any danger authoritatively longer there is no that statute is (1974), petition- example, we reviewed for conspiring mailing obscene to mail an for ers’ convictions advertising § That statute 18 U. S. C. 1461. under brochure inde- lascivious, “obscene, lewd, an it a crime mail makes thing, filthy or sub- device, article, matter, vile cent, Hamling, construed the time, the first we In stance.” “obscenity” the sort of “to be limited to as used term spe- depictions representations ‘patently offensive examples given in Miller cific “hard core” sexual conduct rejected light construction, this we v. California.’” challenge petitioners’ written, facial statute as petitioners’ the section under convictions we affirmed finding petitioners their had fair notice that the after *12 at 114-116. conduct was criminal. Hamling petitioners, that his Osborne had notice
Like the proscribed. face of the It is obvious from was conduct §2907.323(A)(3) goal the is to eradicate that the statute viewing provision pornography. the criminalizes The child depicting of nu- possessing in a state children material and dity provision ap- purposes.” “proper than for other chapter pears Sec- the Ohio Code. in the “Sex Offenses” by proscribes preceded which §2907.322, tion 2907.323 involving sexually “[p]andering minor,” matter oriented “[deception by proscribes to §2907.33, which and followed photo- juveniles.” harmful to That Osborne’s matter obtain sexually boys explicit graphs con- adolescent situations hardly pornography There- needs child elaboration. stitute 2907.323(A)(3) although have been written fore, position imprecise fringes, would at its someone Osborne’s photo- surprised his of the four learn that not be graphs in this case constituted a crime. at issue his criminal, notice that conduct was
Because Osborne had upon from cases which he relies: Bouie case differs three his Washing- (1964), City Columbia, Rabe v. 378 U. S. any no to enter- longer and therefore reason speech will deterred tected on challenge the defendant’s to the statute its face. tain (1972), States, 430 and Marks United ton, petitioners Bouie, had refused the U. S. 188 by being to do so the restau- asked after leave a restaurant objected manager Although had not manager. rant’s petitioners restaurant, petitioners entered when the trespass violating statute Carolina South convicted of were “‘entry upon . after notice proscribing . the lands of another. entry.’” prohibiting such or tenant from the owner Affirming Carolina convictions, the South 349. S., at making trespass it a Supreme as also law Court construed after another’s land on an to remain crime for individual being the convictions due reversed We asked leave. process grounds Court’s Carolina the South because expansion therefore the was unforseeable of the statute suspect petitioners their conduct was no reason had Id., at 350-352. criminal. supra, petitioner Washington, in Rabe v.
Likewise, obscenity Washington violating stat had convicted of been proscribe con the defendant’s terms, its did not that, ute Washington Supreme petitioner’s appeal, the duct. theOn petitioner’s conviction, after affirmed the Court nevertheless pe obscenity Washington construing statute to reach Wash because the the conviction We overturned titioner. broadening ington Supreme was unex the statute Court’s *13 warning petitioner his pected; that had no therefore the proscribed. Id., 315. actions were supra, the States, we held that v. in Marks United And, obscenity announced application standards retroactive (1973), potential the U. S. California, in Miller v. Due Process Clause the of defendant violated detriment the the chal- committed that the defendant at the time because, Attorney lenged in General conduct, Memoirs our decision (1966),provided govern- Massachusetts, S. 413 suspect his actions ing that could law. defendant range expanded when we criminal would later become constitutionally proscribable in conduct Miller. suggests with here is inconsistent decision that our
Osborne Birmingham, dis- We Shuttlesworth agree. had been convicted Shuttlesworth, defendant In literally, violating when read that, an Alabama ordinance public person provided sidewalk stand on a that “a Birmingham only any police officer that at the whim city.” “[t]he vice that constitutional Id., at 90. We stated provision Ibid. As no of so a needs demonstration.” broad Supreme subsequently Court, construed Alabama merely indi- criminal for an made it however, the ordinance along public passage blocking a street vidual free who was “[i]t disobey police We noted that to move. officer's order judicial accept duty, construc- course, our this state is say we cannot construed, As so tion of the ordinance. ... though requires it no is unconstitutional, that the ordinance imagination envisage great situations which such feat of unconstitutionally applied.” might Id., at an ordinance be- the defendant’s conviction 91. We nevertheless reversed had convicted the defend- cause it not clear that the State was than written. as construed rather as ant under the ordinance proposi- Shuttlesworth, then, Id., at stands 91-92.13 narrows uncon- Court an tion that where State stitutionally must statute, ensure overbroad State as it subse- under statute defendants are convicted originally quently was this written; and not as it construed way holding proposition with this case. in no conflicts our contrary, Finally, despite we to the Osborne’s contention Oakes, that Massachusetts v. U. S. do not believe (1989), peti- theory supports Oakes, In his of this case. challenged pornography statute as Massachusetts tioner 13 Shuttlesworth, conviction for we also overturned the defendant’s provi because violating part of Alabama ordinance another the same interpreted criminalizing an individual’s failure to follow a had sion been traffic, policeman directing and the policeman’s when the was directions nothing motor Shuttlesworth had to do with traffic. alleged crime S., at 93-95. *14 alleged crime, overbroad; since the time defendant’s substantially narrowed the statute however, the had State legislative through subsequent enactment —an amendment agreed separate opinion, Justices In five the statute. potential legislature could not cure the over- the state subsequent legislative problem through action; the breadth Id., 585-586. was void as written. statute a similar but dis- contends that Oakes stands for Osborne potentially proposition that, tinct with a overin- when faced may not the statute to avoid a court construe statute, clusive apply problems statute, and then as con- overbreadth implication argument past this conduct. strued, to then the statute is written, that if a statute is overbroad as reviewing As a when a convic- result, void and incurable. potentially statute, a tion overbroad court must under its face, down the statute on but the either affirm or strike did in this case, as the Ohio Court not, court narrowing statute, affirm on the basis of the con- narrow disagree. in full the statute force. We struction, and leave accepted if discussion, our earlier we First, as indicated reworking require proposition, this it would a radical our routinely so as to avoid the law. construe statutes Courts apply potentially reach, the statute statutes’ overbroad place. Roth v. United case, and leave statute (1957), example, construed States, the Court 354U. S. pro- open-ended terms used 18 U. S. C. which mailing “obscene, lewd, of material that is lascivi- hibits filthy characterized or vile.” Justice Harlan ous, indecent, way: Roth in this lewd, lascivious, inde- §1461, ‘obscene,
“The words
something
portrayed
filthy
that is
cent,
vile,’
connote
unacceptable
make it
under
as to
in a manner so offensive
usage
community
mores. While
common
current
meaning,
the statute
different shades
words have
inception
always
at ob-
its
has
been taken
aimed
since
Although
noxiously
portrayals
debasing
of sex.
*15
irrespective
statute condemns such material
of the effect
upon
it
have
those into whose hands it falls, early case of United
Bennet,
States v.
Second, we do not proposi- believe that Oakes urges accept. tion that Osborne us to In Oakes, Justice writing for himself four others, reasoned: Scalia, “The protect overbreadth doctrine serves to constitu- tionally legitimate speech merely post, ex is, that offending after the statute is enacted, but ante, also ex legislature that contemplating is, when the what sort promulgation of statute to enact. If the of overbroad affecting speech laws was cost free . . . is, if no con- constitutionally proscribable viction of conduct would Valeo, Buckley (1976), U. S. is another landmark case where a law was construed to potential avoid problems overbreadth 304(e) place. left in Section of the Federal Act, Election Campaign 434(e) (1976 § ed.), U. S. C. imposed certain reporting requirements on “[e]very person . . . who makes contributions or independent expendi exceeding tures” $100 “other than political contribution to a committee or candidate.” We 434(e) stated that “[t]o insure that the reach of is not broad, impermissibly ‘expenditure’ we construe purposes of that section ... to reach funds used for expressly communications that advocate the election clearly or defeat of a identified candidate.” The section was upheld (footnote omitted). construed. at 80 long offending statute be- as the was narrowed
lost, so legislatures appeal . . . then would have fore the final significantly stay incentive to within constitu- reduced place. one ac-' first When takes tional bounds those statutes that are never chal- count of overbroad elapses lenged, before the ones that the time challenged are to come within constitu- *16 are amended legitimate speech amount of bounds, tional a substantial (emphasis S., . .” 491 . would be ‘chilled’. original). if
In other the Oakes Justices feared that we words, five of paying legislature allowed to correct its mistakes without a law), passing (beyond new for them inconvenience of a we narrowly legislature’s draft a would incentive to decrease place. tailored the first law they by
Legislators own mistakes who know can cure their significant not be as careful to amendment without cost might drafting they avoid overbroad statutes as otherwise judicial likely will if a con- be. But a similar effect not be to is allowed struction of a statute to eliminate overbreadth primarily applied is so be in the case before the court. This legislatures the statute, sure that because the cannot be by narrowing by court, will saved con- be when examined invalidated for overbreadth. than struction rather be convictions under that law latter there could no event, by unprotected the First own conduct even those whose ap- overbreadth, Even if construed obviate Amendment. might by plying pending cases barred statute to drafting con- Thus, careless cannot be Due Process Clause. power the courts cost free based on sidered to be statutory by construction. eliminate overbreadth contends considerations. Osborne There are also other as to eliminate over- statutes so that when courts construe unprotected guilty of con- those found breadth, convictions of any be reversed and fur- must duct covered the statute ther convictions for prior conduct are reprehensible barred.15 Furthermore, because he contends that im- overbroad laws First plicating Amendment interests are nullities and in- capable application of valid from the this outset, would mean that judicial construction could not save the statute even applied subsequent conduct the First unprotected by Amendment. doctrine, overbreadth as we recog- have nized, is indeed Oklahoma, Broadrick v. “strong medicine,” 613, and in- requiring statutes be facially validated whenever overbreadth is perceived would very likely invite reconsideration or redefinition of the doctrine way would not serve First Amendment interests.16
III Having rejected Osborne’s and overbreadth Stanley argu- ments, we now reach Osborne’s final objection his convic- tion: his contention that he was denied due because it process is unclear that his conviction was based on a that each finding 2907.323(A)(3) the elements of was present.17 According *17 submission, Under Osborne’s even where the eliminating construction overbreadth case, occurs in a civil the statute applied could not be to con duct occurring prior decision; plainly to the although for within reach of the terms of plainly the statute protected by not otherwise the First Amendment, until the comply statute was narrowed to with the Amend ment, the conduct illegal. was not 16In terms of applying ruling cases, a pending to we see no difference import constitutional affirming between a court a conviction after con struing a statute to avoid facial ground overbreadth, invalidation on the affirming rejecting conviction after a claim that the conduct at issue is not situations, within the terms of the statute. In both the Due Process require Clause would fair warning statutory pro to the defendant that the scription, construed, covers But process his conduct. even with the due limitation, repeatedly courts affirm convictions after rejecting nonfrivolous claims that the conduct at issue not forbidden the terms of the stat ute. argued earlier, As there doubt is no whatsoever that con Osborne’s proscribed by duct is the terms of the child pornography statute involved here. protects ''[T]he Due Process against Clause the accused conviction ex upon cept proof beyond every necessary reasonable fact doubt to con- Supreme to secure a conviction Court, order to the Ohio 2907.323(A)(3), prove must both scienter the State under depicting possessed a lewd material defendant and that the jury genitals. graphic The in this focus exhibition or Osborne that it could convict not instructed case was requirements. these that satisfied conduct jury instructions, in the the omissions The concedes State right argues to assert this due waived his but that Osborne object process challenge in- failed to when the he because given The Ohio Court at his trial. structions were question citing us there- now, before law. held, so Ohio reaching precluded Osborne’s from we are fore, is whether comply challenge process counsel’s failure because due independent procedural state-law an rule constitutes with the support ground adequate We have no below. result difficulty agreeing counsel’s that Osborne’s with State jury urge on scienter the court instruct the failure ground independent adequate state-law constitutes an process reaching preventing conten- Osborne’s due us from proof point. of scienter is law states that tion on that present required where a criminal one, like the instances, applicable specify mental state. See statute not does procedural supra. moreover, serves rule, The state 9,n. ensuring important counsel do interest the State’s juries providing preventing part courts from trial their erroneous instructions. with respect to instruct on lewd- failure to the trial court’s
With upon Based conclusion: reach a different however, we ness, that counsel’s failure believe record, we review of the our considering prevent object point us from does on this brief: *18 trial was claim. Osborne’s Osborne’s constitutional only arresting the stand; to two officers called The State Right before himself. summoned Osborne the defense contending case, counsel moved dismiss trial, Osborne’s Winship, In re charged.” U. S. which he is crime with stitute the 2907.323(A)(3) unconstitutionally § Coun- is overbroad. sel stated: [the] filing the fact that to dismiss based on vagueness,
“I’m a motion . . . The stat- overbroad void statute person pic- a couldn’t have because ... ute’s overbroad grandchildren; probably couldn’t even of his own tures photographs of himself. have nude photos yourself you “Judge, when if had some nude violating probably you you child, a would were law .... hap- neighbors, people grandparents, who or other
“So criminally pen photograph are liable under to view the going to I’m ask the statute. And on that basis case.” Tr. 3-4. Court to dismiss the judge prosecutor that a number informed trial recently rejected had identical motions courts Ohio state challenging 2907.323(A)(3). 5-6. The court then over- Tr. Immediately Os- Id., thereafter, at 7. ruled the motion. jury proposed Ibid. various instructions. borne’s counsel sequence events, we believe that we this Given process claim because we are convinced reach Osborne’s due attorney pressed of the State’s fail- the issue that Osborne’s proof and, trial court gained by requiring under on lewdness before the ure nothing Os- circumstances, would be jury object specifically lawyer time, second borne’s judge, re- terms, in no uncertain The trial instructions. argument jected was that the statute as written counsel’s should then The State contends that counsel overbroad. jury on be- that the court instruct the lewdness have insisted finding existed, element convic- cause, that this absent accept posi- Were we this tion would be unconstitutional. meaningless ritual we “Torce resort to an arid tion, would perceivable further no state interest.” form,’. . . would (1984), Kentucky, quoting Staub James v. (1958), citing Henry City Baxley, 355 U. S. *19 (1965). Mississippi, As Justice S. 379 U. springes ago, “[w]hatever years the State warned us Holmes endeavoring rights to assert are set for those who rights, of federal when the assertion confers, the State reasonably plainly is not to be defeated under made, practice.” Wechsler, 263 U. Davis v. S. name of local (1923). Douglas analogous to our decision decision here
Our the Ala- case, In that Alabama, had waived had held that defendant bama Court reading objection into evi- to the Clause his Confrontation given. Although not fol- had that he dence of confession required by lowing precise procedure law,18 Alabama prosecution’s unsuccessfully objected defendant had holdings “our consistent followed We use of the confession. procedural adequacy to the assertion of bars of state that the question” questions and stated that a federal is itself federal ap- sufficiency objections determining have “[i]n we ample objection principle general which is plied that an alleged timely bring federal error to the attention appropriate corrective it to take and enable the trial court legitimate interests, and state serve action is sufficient preserve here.” the claim for review therefore sufficient legitimate Concluding “[n]o state interest Id., 422. repetition patently by requiring a served have been would ruling procedural objection,” that the Alabama held we futile con- preclude the defendant’s our consideration did a similar con- 421-422. reach Id., at We claim. stitutional in this case. clusion
IV although First Amendment we find Osborne’s conclude, To and re- unpersuasive, his conviction arguments we reverse ruling sought “‘There must be had stated: 18 TheAlabama court was no put in error. Here there judge trial can before the acted on embracing alleged confes questions as to the ruling asked or invoked omitted). (citation sion.’” con- to ensure that Osborne’s trial order mand for a new *20 had finding proved from a that the State viction stemmed 2907.323(A)(3). §of of the elements each ordered.
So Blackmun, concurring. Justice to ex- I write separately
I opinion. the Court’s join at Brennan, see post, with Justice agreement press my due Osborne’s to entertain ability this Court’s 146, 20, n. trial court on the of the failure premised claim process elements focus” exhibition” and “graphic the “lewd charge at trial. to this failure his depend upon objection does not Marshall with whom Justice Brennan, Justice join,-dissenting. Justice Stevens conviction must that appellant’s
I with the Court agree re- is free on however, I not that Ohio agree, do reversed. §2907.323(A)(3) Ann. him under Ohio Rev. Code retry mand to 1989) view, In the state my it exists. currently as (Supp. the Ohio authoritatively by as construed law, even overbroad, Stanley and our decision Court, fatally still is from the State (1969), prevents 557 v. 394 S. Georgia, of the photographs criminalizing appellant’s dissent. I therefore respectfully issue in this case.
I A is overbroad. Section written, As the Ohio statute plainly 2907.323(A)(3) any or view “[pjossess makes it crime to a minor who shows performance material Another nudity.” in a state of section child or ward person’s “nudity” defines human depiction
“the showing, representation, with less area, or buttocks pubic male or female genitals, of a female breast with covering, or full, than a opaque portion full thereof covering any than a opaque less
127 or of male genitals below the covered top nipple, §2907.01(H). state.” discernibly turgid 2907.01(H) §§2907.323 use with short, nudity, simple child But as more, out as a way defining pornography.1 “ clear, made alone’ does not ‘nudity our decisions have prior material the mantle of the otherwise outside place protected v. Mount Schad 452 U. S. First Amendment.” Ephraim, (1981) Georgia, Jenkins 153, v. 418 U. S. (quoting FW/PBS, Inc. Dallas, (1974)); see also id., (1990) n. con (plurality opinion); (Brennan, J., Inn, Inc., Doran v. Salem U. S. curring judgment); Promotions, Ltd. v. Con Southeastern (1975); 922, 932-933 LaRue, rad, (1975); U. S. California *21 Jacksonville, Erznoznik City 109, 118 U. S. of an or (1975), example, 422 S. 213 for we invalidated U. that “would a film a containing pic bar[red] dinance [have] or body victim, a the nude of a war baby’s buttocks, ture of is The or nudity from a in which indigenous. scenes culture dinance also newsreel scenes might prohibited] [have] on of an art as well shots of bathers exhibit opening has cover beach.” The Ohio as written the same broad law similarly and is unconstitutional.2 age relating pornography are not provisions of law child 1 Other Ohio example, “nudity.” For Ann. phrased in terms of Ohio Rev. Code 1989) distribution, prohibits knowing creation, sale, (Supp. §2907.321 the involving prohibits a minor.” 2907.322 possession “obscenity Section or distribution, creation, sale, depict knowing or of materials (defined activity” or engaging in conduct ing a minor “sexual as “sexual contact,” 2907.01(A), (B), (C)), masturbation, bestiality. §§ see sexual type pornography chiefly harm child from The documented from arises provisions, rather punished under these obscene materials would “nudity” depictions mere that are criminalized than from the (Ste (1982) Ferber, 747, 779, n. 4 § See New York v. 2907.323. vens, J., concurring judgment). 2 purposes” exemptions “proper §2907.323’s hints that The Court (cid:127) ante, I being it at 112. dis provisions might save from overbroad. See (e. artistic, purposes” g., a “bona fide agree. “proper The enumerated medical, proper scientific, purpose”) other are simulta- educational... 128
B standard, “nudity” use the statute’s Wary 2907.323(A)(3) to apply construed Court or involves a lewd exhibition constitutes nudity such “where 37 Ohio St. Young, State v. genitals.” focus on a graphic (1988). The exhi- 1363, 1368 “lewd 525 N. E. 2d 249, 252, 3d only fail cure the over- tests not focus” “graphic bition” problem also create new statute, they but breadth of vagueness. overbreadth contention appellant’s
The Court dismisses exclusively pre our Relying cursory a single paragraph. Ferber, (1982),3 S. 747 in New York v. vious decision pur- acceptable an “artistic” neously vague What is too and too narrow. Mapplethorpe’s qualify? along lines of Robert pose? art Would erotic purpose? What about sex or “educational” valid “scientific” What Inc., See, Magazine, Supp. F. g., e. Faloona Hustler manuals? 1986). (CA5 (ND 1985), aff’d, permis- 2d 1000 What is a F. Tex. photos purpose purpose”? about taken for one proper What sible “other pur- other, purposes? “proper prurient more and recirculated problems analogous to those this Court poses” appears standard to create importance” describing “redeeming social of obscen- has encountered id., Illinois, (1987); 500-501 at 513-519 ity. Pope v. U. S. See States, (Stevens, J., dissenting); Smith v. United U. S. *22 Slaton, (1977) (Stevens, I 413 J., dissenting); Paris Adult Theatre (1973)(Brennan, J., dissenting); 49, California, Miller v. 413 U. S. Massachusetts, 15, (1973); Attorney General 383 24 Memoirs U. S. (1966) States, (plurality Roth opinion); 418 v. United U. S. 476, 484-485 however, time, “proper purposes” is too lim- Ohio’s list of At the same obviously permissible the commercial such uses as distri- ited; it excludes exchange pictures among photographs simple or of fashion bution Thus, neighbor pho- grandparent or who receives a family and friends. subject to criminal might toddler sanctions. tograph of an unclothed genitals” phrase “lewd exhibition of the was offered as Although the S., example permissible regulation California, in Miller v. of a an vagueness question. in the Court’s treatment of at it was mentioned phrase prefaced “[pjatently with the words offensive then the was Even “lewd that the exhibition” standard ade reasons majority have the statute’s ambit because up “[w]e narrows quately in overbreadth against challenges language held similar Ante, 114. terse is un explanation at The Court’s past.” Ferber that in a law differs cru since involved satisfactory, cial from one here. respects Ferber criminalized law at use
The New York issue “‘[sjexual “‘any defined as performance,”’ a child includes sexual thereof which conduct performance part at age.’” S., than sixteen U. years a child less 263.00(1) 1980)). (McKinney Y. Penal Law N. (quoting “‘ conduct’”” was in turn defined as “‘actual or simu- “Sexual intercourse, intercourse, sexual sexual sexual deviate lated lewd masturbation, abuse, or ex- bestiality, sado-masochistic §263.00 at 751 (quoting hibition of the genitals.’” (3)). we without acknowledged “nudity, Although id., at n. we found is more[,] protected expression,” because “a frac- tiny that the statute was overbroad reach” tion materials within the statute’s was constitution- Id., id., see also ally 773; protected. (Brennan, J., We therefore con- concurring judgment). upheld sold films depicting of a bookstore who proprietor viction boys masturbating. young First, for several reasons. is distinguishable Ohio law with a York not criminalize materials
the New statute did and, on the discussed further “graphic genitals, focus” test is impermissibly capacious. focus” below, “graphic Ohio’s element, aside the focus” setting “graphic Even Court’s construction still overbroad narrowing Supreme than nudity” it exhibitions rather because focuses “lewd of sexual in the genitals” exhibitions of context “lewd conduct, as in the New York statute at in Ferber.4 issue ibid., with representations descriptions,” and included a list other scope. types that served limit its of sexual conduct opinion context of the indicates that “[t]he The Court maintains “nudity” that ‘the term as used in R. Court believed C. the Ohio *23 areas, of pubic Ohio law to include “nudity” depictions defines “in a male breast, genitals and covered buttocks, the female as as well of geni- the depictions discernibly turgid state,” than Ohio law is much broader face, then, tals. On its the York’s. New interpreta- Court’s addition, Supreme whereas Ohio the alone, test nudity” standing uses the “lewd exhibition of
tion of exhibition York the “‘lewd employed phrase the New law 2907.323(A)(3) Young, genitals.’ of State v. refers to a lewd exhibition (1988).” Ante, 1363, 115, 249, 258, at E. St. 3d N. 2d 37 Ohio (and however, Court, part) by the a passage quoted n. 11. cited The appeal, argument his on description appellant’s objections at trial and of by Supreme exhi- precise Court of the “lewd not a formulation the Ohio quotation Indeed, only after the cited test. two sentences bition” necessary a element of majority, [a]s to “lewdness the Ohio court referred 2907.323(A)(3).” 3d, 2d, 525 N. E. nudity 37 Ohio St. at under R. C. added). Supreme Court opinion, the Ohio (emphasis at 1373 Earlier its of the statute and stated that carefully its construction more articulated nudity 2907.323(A)(3) con- depictions nudity § “where such criminalizes of Id., genitals.” graphic focus on the a or involves a stitutes lewd exhibition opinion that I 2d, portion It is E. at 1368. on this at 525 N. rely. nudity say, such constitutes a Supreme “[WJhere not
The Ohio Court did genitals.” The noun graphic a focus on exhibition or involves lewd “on,” and the preposition take as a modifier the “exhibition” does not nudity” “a “prohibited lewd repeated state of court’s reference to the 2d, id., N. E. genitals,” graphic exhibition focus on the was deliberate. Ohio leaves no that its choice of words doubt pertain only to clearly standard nu- meant the exhibition” court “lewd ibid, (referring also to “mor- dity displays genitals. See exhibitions”). lewd ally nudity innocent states of as well as Supreme today the Ohio Court intended the Court correct that But were “ test, hardly I genitals” re- ‘lewd exhibition’ of the would to create a Court, Indeed, approach by such confused assured. nudity” and in part opinion “lewd referring of its exhibitions in one great deal genitals,” create exhibitions of would to “lewd another 2907.323(A)(3) likely would render scope uncertainty regarding We, course, powerless clarify are vagueness. that statute void provided by the law state court. interpretation of Ohio elaborate 51, 60-61 Maryland, See Freedman *24 longer examples genitals’” of in the context of a list the intercourse, ‘“actual or simulated sexual of sexual conduct: bestiality, masturbation, sexual intercourse, sexual deviate [and] 751. This at abuse.’” sado-masochistic recog- syntax important to in Ferber. We our decision was applications potential impermissible for of New nized the examples id., but in view of the statute, York see willing provided by statute, of we were “sexual conduct” New not “widen the York courts would assume that by giving expansive possibly of an invalid reach the statute exhibition^] proscription on of the to the ‘lewd construction genitals.’” Ibid, added). (emphasis In the Ohio of statute, analog definition of to the “sex- there is no elaborate course, Hence, while the as a similar limit. ual conduct” to serve part the notion of law be saved at least New York could Statutory ejusdem generis, 2A Sands, see C. Sutherland (4th 1984), p. §47.17, ed. the Ohio Construction of Court’s construction its law cannot. nudity statutory in the Ohio
Indeed, broad definition pornography” any means that could include scheme “child por photograph depicting a a small “lewd exhibition” even any part tion of the female breast of a minor’s buttocks topless nipple. a Pictures of bathers at Mediterra below the teenagers revealing dresses, and even of beach, nean prohibited.5 might romping Fur unclothed, all be toddlers parent “[i]f, example, gave family a a majority concedes unclothed, was parent’s taken while infant picture of the infant friend a Ante, provide n. 9. To another disturb apply.” statute would for a suntan lotion ing A commercial advertisement illustration: well-known bikini, young girl’s revealing half of a dog pulling a down bottom shows pale buttocks. That her suntanned back and a stark contrast between absurd, altogether yet be too might illegal Ohio is an this advertisement “Many conceivable, language under the statute. of the conclusion of the Renoir, Donatello, Degas, to name a few —have great world’s artists — many years photo under acclaimed age, models worked from partially clad minors.” Massachu graphs included nude or and films have (1989) (Brennan, (foot- Oakes, J., dissenting) setts thermore, law nudity forbids not only depictions se, but also per depictions buttocks, breast, or pubic “full, with less area than a opaque covering.” Thus, pictures of fashion models wearing semitransparent clothing might illegal,6 might clad male photograph depicting fully “in nevertheless his captured genitals tur discernibly gid state.” The Ohio statute many thus sweeps types *25 materials that are not “child we as used that pornography,” Ferber, term in but rather that full First Amendment enjoy protection.
It be that might objected of these of nu- many depictions dity do not “lewd amount to But in exhibitions.” the absence of any authoritative definition of that phrase by the Ohio Supreme Court, we cannot ones. predict which would Many characterize a of a seductive fashion or photograph model alluringly posed adolescent on a European beach as topless “lewd,” such although pictures constitu- indisputably enjoy Indeed, tional think protection. some that nu- might any dity, that especially involving by definition minor, “lewd,” is this Court has yet clearly established that nudity not ex- omitted). addition, note baby there is an “abundance of and child photographs every day covering, taken without full frontal not to mention work family snapshots.” Id,., of artists filmmakers and nudist at (Brennan, J., dissenting); Schmakel, L-88-300, see also State v. No. (Ohio (“[A] App., 1989), pp. Ct. parent Oct. photographing his rug naked toddler on a would prison bear with a . threatened term . . parents ostensibly though even taking pic- have the same interests in those they journal keeping gloating tures do about their children’s accomplishments”). examples conduct,” None of these involves “sexual Ferber, 765, yet might at all be unlawful under the Ohio statute. (Fla. 1977) State, Cf. So. 2d App. (invalidating as Steffens impermissibly vague prohibited waitresses, ordinance “female enter employees public of a appearing tainers other from business” with their mesh, “thinly by transparent breasts tight covered net or lawn skin materi which tight, appear uncovered,” als are flesh colored worn skin as to so ground scanty apparel on view of the “[i]n female which is now socially beaches, acceptable public particularly description on of the unclear”). type clothing extremely this forbidden ordinance is of the First Amendment. scope eluded from automatically even to hazard a as to what guess The Court is unable today rely entirely it is forced to mean; “lewd exhibition” might discuss, did not let simply an case—Ferber—that inapposite issue here. decide, alone the central clues as to the Court few provided The Ohio Supreme exhibition of nudity.” “lewd phrase meaning “child from pornography” “obscenity,” court distinguished im- 2d, 1372, thereby see 525 N. E. 3d, 37 Ohio St. required believe that an exhibition was that it did not plying as “lewd.”7 But it sup- to be in order to qualify “obscene” definition —a omission disturbing plied no authoritative exhibition” from the of the “lewd phrase of the absence light of the Sex Offenses chapter definition section statutory fact, §2907.01.8 In the word Ohio Revised Code. See necessary equate “lewd” with “obscene” have found it Other courts See, problems. g., e. vagueness United order to avoid overbreadth Film, 123, 130, (1973); n. 7 Donnen v. 12 Reels U. S. States 200-ft. *26 (“lewd” (1967) State, 591, 597, 264, berg App. 1 232 A. 2d 267 and v. Md. “obscene”; the words would be too equivalent “[o]therwise “indecent” to statute”); in criminal ex vague permissible standard State to constitute a 223, 232-233, App. Corp., Theatrical 59 Mich. rel. Cahalan v. Diversified Marshall, 665, 672, (1975); 83 2d 389, v. Wash. 229 N. W. 2d Seattle Voshart, 419, 429-431, 693, (1974); 39 Wis. 2d 521 P. 2d State (1968). Supreme specifically rejected But the Ohio Court N. W. 2d 6-7 path. this equating “lewd” with “obscene” would not ade- my judgment, even ‘obscenity’ concept cannot be de- clarify because “the of
quately matters clarity provide persons notice to specificity and fair fined with sufficient materials, prevent sexually substan- and distribute oriented who create byproduct attempt suppress protected speech as a tial erosion of very costly harms.” Paris unprotected speech, and to avoid institutional Slaton, (Brennan, J., dissenting); at 103 see Adult Theatre I v. FCC, California, Inc. v. S. also Communications Sable of (1989) J., dissenting part); in (Brennan, concurring part in (1987) id., (Brennan, J., Illinois, dissenting); Pope (Stevens, J., dissenting). at 513-518 2905.26(B), repealed in defined “lewd § which was Revised Code “any indecent or obscene act.” As it now unhelpfully as ness” somewhat does not in “lewd” the definition appear statutory any or materi- involving obscenity sexually crime other oriented §§2907.31-2907.35. als in the Ohio Revised See Code. reads, chapter remarkably the Sex Offenses the Ohio Revised Code is any devoid use of term of “importuning,” “lewd.” The crime for example, is in engage activity” defined as solicitation to “sexual or §2907.07 “sexual Rev. conduct.” Ohio Code Ann. inde- “Public cency” comprises “expos[ing private parts,” “engaging] one’s] in mastur- bation,” “engaging] conduct,” “engaging] in sexual or in conduct which ordinary to an appear observer would to be sexual conduct or masturba- §2907.09. tion.” “Prostitution” engaging is described as in “sexual ac- (1975 tivity §§ for hire.” Supp. Ohio Rev. Code Ann. 2907.21-2907.26 1989). Currently, several sections of Ohio Revised Code the Sex outside chapter Offenses contain term “lewd.” See Ohio Ann. Rev. Code (1976) § (“Any municipal 715.52 corporation may [p]rovide pun- . . . for all ishment of lewd public and lascivious behavior the streets and other §3767.01(0 places”); (1988) Ohio Rev. Code Ann. (defining public “nui- by sance” as “that which is defined and declared statutes to be such and any lewdness, . . . place upon in or which assignation, prostitution or is conducted, continued, permitted, exists, any place, or or upon or which lewd, lascivious, indecent, plate negatives on, films obscene so [and 4715.30(A) exhibited]”); 1989) are (Supp. Ohio Rev. Code Ann. (providing holder of a certificate chapter “[t]he or license issued under this subject disciplinary action dental [e]ngaging state board for . . . in lewd or immoral conduct in provision connection with the of dental serv- (1977) (“No §4931.31 ices”); Rev. person shall, Ohio Code Ann. while com- any person with municating telephone, other . over . . use or address to person any such language lewd, lascivious, other words or of a or indecent nature, character, or connotation purpose annoying sole such person”). other any Court did not refer to provisions these standard, its articulating provide “lewd exhibition” they guidance little deciphering nudity” Indeed, the “lewd exhibition although test. *27 statute, public 3767.01(C), Ohio phrase nuisance “lewdness, contains assignation, prostitution,” or interpreted it has been to refer to con duct printed or behavior and not photographs and other materials. See Pizza, (Ohio L-88-045, 10, 1989), Ohio v. No. App., p. 18 Ct. Mar. 18. Thus, has those Ohio followed States have determined that “the term persons apply pornography.” ‘lewdness’ does sell Chicago who v. Geraci, 699, (1975) App. 704, Ill. 487, (emphasis 30 3d N. E. 492 332 2d
135 exhi- “lewd grafted Court Thus, Supreme when the Ohio venturing was it nudity, the definition bition” test onto uncharted territory.9 into understood commonly longstanding, there is no
Moreover, Court’s Supreme which the upon definition of “lewd” the “lewd draw that can save be said to construction might At vagueness.10 from impermissible exhibition” standard 302, 295, 438 Ill. 2d added); Chicago Corp., Festival Theatre 91 see v. also (1982) have held that courts 159, (noting N. E. “ that various 2d 161-162 ” appli are not ‘lewdness, abatement statutes assignation, prostitution’ or books). cable to obscene films or recognized the Indeed, Court has contexts the Ohio other ” See, g., Rogers, e. Columbus v. “lewd. difficulty defining the term (1975) 563, for (holding 565-566 void 161, 163-165, N. E. 2d Ohio St. 2d “ any person appear on shall city providing ‘[n]o vagueness ordinance be nudity or in a dress not public place in a state public or other street ”); sex, indecent or lewd dress’ Columbus her or in an longing to his or (1974) 62-63, (per Schwarzwalder, 313 N. E. 2d 2d 39 Ohio St. curiam) overbreadth, under disor grounds of convictions (reversing^ on “ ‘disturbing] good order and prohibited derly ordinance that conduct ” “ public peace by violating] the indecent city’ ‘otherwise quiet of the and ”); see also South by or lascivious behavior’ disorderly conduct or lewd and (Ohio 18, 1988), App., Aug. Richardson, Ct. Euclid v. Nos. stating municipal ordinance vague and overbroad pp. (invalidating own, operate, or association shall person, organization, club that “‘no solicit, patron entice another to invite or manage a brothel or maintain or ” conduct,’ and that lewdness or sexual engage in acts of or to ize brothel ” “ “ gross inde or relations of such ‘sexual conduct ‘lewdness’ as defined ”). community corrupt morals’ notorious as to cency and so va grew out of “the archaic on “lewd” acts 10 Historically,prohibitions prosecu grant police designedly drafted which were grancy statutes Municipal Court Pryor v. discretion.” and standardless vague tors (1979). held such 238, 248, We 599 P. 2d 3d Angeles, 25 Cal. Los City Jack unconstitutionally vague Papachristou laws vagrancy (1976) (“Any §715.55 sonville, Rev. Code Cf. Ohio S. 156 (A) punishment persons dis may provide for: municipal corporation by corporation clamors municipal quiet of the good order and turbing the drunkenness, intoxication, fighting, com season, by night and noises language in profane assault, battery, using obscene mitting assault citizens, annoyance or oth public places to the and other the streets conduct, by disorderly violating public peace indecent erwise *28 136 indecency “any gross included “lewd” the term law,
common Col morals,” community to corrupt as to tend notorious so 45 43, 2d 288 S. E. 680, 682, State, 160 Ga. App. lins v. en and dependent was “subjective” an (1981), approach Mor bias.” moral, and cultural “social, a speaker’s tirely 1975).11 (ED Not Mich. 930 Detroit, 922, 389 F. Supp. v. gan inde in applying long experience with States surprisingly, in is “too “lewd” the word have learned laws cency v. Courtemanche enforceable.” uncertain definite and 1974). also (Tex. See Cr. App. 546 State, 545, W. 2d 507 S. (Ariz. Dis 1975); 235 Purcell, 231, 402 F. Supp. Attwood v. (D. C. 332, 335-336 Walters, 319 A. 2d v. trict Columbia pe to such 1974). reference The is often defined term wanton, unchaste, lascivious, “‘lustful, synonyms jorative Williams, 59 v. People and conduct.’” or loose morals (1976). But 460, 462 229, Rptr. 130 Cal. 225, 3d Cal. App. is meaning which synonyms through and very phrases “the than clarify.” rather serve to obscure ascribed purportedly 1974). (Iowa in “To 215 N. W. 2d Kueny, v. State is one which or dissolute’ act that a ‘lewd jury struct un- ‘foul’ additional ‘lawless,’ piles or ‘loose,’ or morally (B) any vagrant, common punishment of lascivious behavior. lewd or peace, known disturber of the prostitute, habitual beggar, common street per- thief, stuffer, game player, a burglar, ball gambler, watch pickpocket, swindle, per- any trick, game, device with intent practices son who give a person who cannot family, any suspicious his and who abuses son added). himself”) (emphasis account of reasonable morality can be Virtually any running afoul of “conventional” act See, Jelly Dabney, g., e. v. laws. under “lewdness” sanctioned has been 1978) punishable under (describing, as “lewdness” (Wyo. 2d 581 P. e., cohabitation,” “dwelling living to i. “illicit crime of prohibition, other, man to each in the woman, legally married by a man gether intercourse”) wife, indulgence acts of sexual of husband and ner 1985) (Fla. State, App. 2d omitted); Egal 469 So. (quotation apparel (“'[I]f years ago man or woman had forty either a donned.the probably have been today person . . . such would on our beaches popular ”) (quoting lascivious, person’ State lewd, and indecent aas . . . branded (1944)). 330, 332, 19 2d Mayo, Fla. So. rel. ex Swanboro words statute. certainty already vague upon *29 is not precise rendered more short, vague statutory language of uncer- by it terms of or defining synonyms equal greater 25 v. Court Los Cal. tainty.” Municipal Angeles, Pryor for (1979). 636, 3d 599 P. 642 238, 249, 2d Court, moreover, The did not Supreme specify Ohio is A from which “lewdness” to be determined. perspective of A “reasonable” view “lewdness”? reasonable person’s An “average” person applying contemporary pedophile’s? local Statewide standards? Nation- community standards? California, wide standards? Communications Cf. Sable FCC, Illinois, 133-134 v. 115, (1989); Inc. v. 492 U. Pope S. States, (1987); 481 Pinkus v. United 436 497, U. S. 500-501 States, v. 431 Smith United U. 293, (1978); U. S. S. 15, v. 413 U. S. 24 300, (1977); California, n. 6 Miller 291, (1966). York, 383 U. S. 508 502, Mishkin v. New (1973); exhibition” standard does sum, the addition a “lewd If it reach. cre- adequately anything, narrow the statute’s the public ates a new little problem vagueness, affording and an avenue for providing notice the statute’s ambit “ their and ‘policemen, prosecutors, juries pursue personal Lawson, 352, 358 Kolender v. predilections.’” (1983) 566, 575 (1974)); Smith v. S. Goguen, (quoting n. Hill, 465, 15 451, Houston U. S. see also (1987).12 First interests Given the important Amendment particular impor danger discriminatory enforcement The assumes case, pornography child the context of instant which involves tance of Sadly, that the evidence indicates over with male homosexual overtones. of “lewdness” laws whelming majority of arrests for violations involve 2d, Pryor, supra, at n. n. 599 P. at 8. male homosexuals. See (1987) Hill, Cf. Houston (prosecution of male homosexual S. 451 duties); performance police in the of his De interfering with a officer Law, Harv. L. velopments in the Orientation Law —Sexual 1537-1538, the law application “Such uneven Rev. judicially meas consequence statute which construed the natural of a community notions of criminality individual ure[s] the of conduct even ” 2d, Pryor, supra, 252, 599 at 644. P. is distasteful what behavior. sweep vague, of the “lewd exhibition” issue, broad 2907.323(A)(3)’s language means that it cannot cure overbreadth. Supreme “graphic ele Court also added a focus”
The Ohio nudity stranger phrase, a ment to the definition. This obscenity regulation, vagueness dif suffers from the same ficulty Although as “lewd exhibition.” “graphic might be, Court failed to elaborate what a focus” appears nothing subjective test to involve more than a es centrality prominence genitals in timation of the picture representation. a dependent or other Not is this factor idiosyncrasies perspective on the of the ob *30 it also the material at server, is unconnected to whether issue Simple nudity, protection. merits constitutional no matter prominent “graphic,” how the bounds of the First is within Michelangelo’s might Amendment. “David” be said to have “graphic plainly portrays genitals, a for it them focus” in a manner larly, a casual unavoidable to even observer. Simi painting partially girl
a in of a clad could be said to “graphic picture’s depending lighting volve a on the focus,” emphasis,13 depictions as could the of nude children on photograph the friezes that adorn our Even a courtroom. running playing a child naked on the beach the bathtub might depending run afoul of the cam law, on the focus and angle. era “graphic the “lewd focus” sum, exhibition” and tests are vague any
too to serve as workable limit. Because the stat- “ “lewd standard tool for exhibition” ‘furnishes a convenient “harsh and dis officials, criminatory by against prosecuting particular enforcement local Lawson, Kolender groups displeasure.”’” deemed to merit their v. S., (quoting Papachristou, S., quoting at 360 405 U. in turn Alabama, (1940)). Thornhill U. S. 2907.323(A)(3) possess Since makes it to crime to “view” as well as to nudity, depictions gallery might visitors to an art find themselves of the law. violation authoritatively by
ute, even as construed the Ohio impermissibly appel- I overbroad, would hold Court, is under it.14 lant cannot be retried
II if our overbroad, Even the statute was not decision Georgia, (1969), Stanley forbids the crimi- U. S. private possession appellant’s nalization of his home of the any- “If materials at issue. the First Amendment means thing, telling mán, it means that the State has no business sitting may house, alone in his own what books he read or Appellant Id., at 565. what films he watch.” was con- possessing photographs of nude minors, victed for four seized during in the bedroom of his house from a desk drawer pursuant Appellant search to a warrant. testified executed given pictures in his home that he had been friend. photographs pro- no evidence that the had been There was commercially kept All in an duced or distributed. were appellant personal album for his use and had assembled possessed privately years. had for several In these the Court’s focus on Ferber rather circumstances, Stanley por- misplaced. than Ferber held that child production nography category of material the and distri- is “a protec- bution is not entitled to First Amendment of which added); (emphasis our decision did not at 765 tion,” *31 authority private possession. The of a State to extend to production regulate of such materials is and distribution 14 2907.323(A)(3) depictions restricted to of “a minor scope of is This does not cure the person’s who is not the child or overbreadth ward.” constitutionally protected problem, many photographs because outlawed art, statute, cir by advertisements and works of such as commercial ante, family. at 124 subject’s outside of the immediate See also culate (“ child, you photos yourself you of were a ‘Judge, if had some nude when neigh probably violating grandparents, be the law .... you would So criminally bors, happen photograph view are people other who to ”) 3-4). (quoting Tr. under the statute’ liable possession.15 penalize Indeed, power dispositive to of its not obscene films at issue were Stanley that we assumed in could production, thus and distribution sale, their that and S.,U. prohibited See 394 decisions. under our have been although the that reasoned Nevertheless, we n. 2. obscenity” regulate child power to “retain broad States —and simply power extend pornography does not as well—“that privacy by his own in individual mere place nothing than more Id., 568. Ferber did home.” pornography First Amendment level of the same on child meaning pornography, its protection adult as obscene proscribed. The dis- production could be distribution Stanley what materials between tinction established they may regulated regulated still stands. be how (CA11 980, n. Miller, 776 F. 2d v. United States See 1985) curiam); Keyes, People 993, 995, 2d (per 135 Misc. v. re- As Justice Y. 2d 517 N. S. White personal “The constitutional context: in a different marked obscenity Stanley possess rights and read those like thought not de- do freedom of mind and and their their homes ob- pend or whether materials are obscene whether the rights constitutionally protected. scenity to have Their is by independently private saved are and view material law; Stanley anomaly in the to the not an The distinction drawn listeners, whether expression valued protected contrary, have often we safeguards fully to the was entitled not the source of the communication v. Public g., Gas & Electric Co. See, e. First Amendment. of the Pacific (1986) opinion); California, 475 U. S. (plurality Utilities Comm’n of New York v. Public Service Comm’n Edison Co. New Consolidated Bank Bos York, First National (1980); 530, 533-534, and n. 447 U. S. Postmaster Bellotti, Lamont (1978); 765, 777, and n. ton 435 U. S. (1965) (Brennan, General, J., concurring). Just 301, 307-308 right not rest on the information does right a listener to receive as the it, production power to ban producer disseminate so authority imply a concomitant pornography does of child distribution possession. proscribe mere *32 Reidel, States v.
the Constitution.” United 351, 402 U. S. Stanley inapposite The finds on the today ground Court that “the interests child underlying pornography prohibitions far law at issue justifying Georgia exceed the interests Ante, 108. The does not majority’s analysis at Stanley.” chil- the sexual scrutiny.16 exploitation withstand While dren is a serious undoubtedly problem, may employ it. Indeed, other to combat the State has weapons already prohibiting creation, sale, enacted a of laws panoply pornography obscenity involving distribution of child supra. 1, why minors. n. Ohio has not demonstrated See must forbid why these laws are the State inadequate mere as well. possession
The
that Ohio “will decrease the
today speculates
Court
if it
those who
penalizes
of child
production
pornography
Stanley
Georgia that
First and Four
16 Althoughwe held in
v.
“the
prohibit making
private possession
mere
of obscene
teenth Amendments
crime,”
568,
acknowledged
“compelling
material a
at
we
right
possess”
overriding
reasons
exist for
of the individual to
Id.,
filmed,
568,
types
“printed,
recorded
at
n. 11.
other
materials.”
majority’s
language
support
today,
reference to this
as
for its decision
ante,
110,
Stanley
11 in
ignores
see
the fact that footnote
cited
to 18
793(d),
which criminalizes
of defense information
U. S. C.
security.
equate
pornography
To
with
harmful to U.
national
child
S.
exception carved in footnote 11 of
secrets is to read the narrow
Stan
state
that the case established.
ley
swallowing
general
rule
See State
(Ohio
1985)
Meadows,
(Doan, J.,
App., Dec.
concur
No. C-850091
Ct.
(“The
Stanley] applies
footnote
to traitorous or
ring)
[in
reservation
materials,
rev’d,
pornography”),
child
28 Ohio St. 3d
and not to
seditious
(1986),
denied,
(1987);
see also
N. E. 2d 697
cert.
possess product, thereby decreasing and view Ante, Criminalizing at 109-110. is neces- possession thought Ferber, “since the our sary because time of decision much of the child market has been driven under- pornography result, it is if ground; difficult, impossible, as a now solve the child pornography by attacking pro- problem Ante, duction As and distribution.” 110-111. support, that 19 Court notes States have “found it necessary” prohibit possession. Ibid. Even I to simple were accept the Court’s find the empirical would Court’s assumptions,171 prohibited have possession pornography hardly That 19 States of child proves approach that integral produc such an to effective of enforcement tion and A speech justified by distribution laws. restriction on be cannot fact, reasoning. difficulty such enforcing posses self-referential of example, requirements probable sion laws —for of and a cause warrant before a search be penalties possession undertaken —means that for are complements production, sale, dubious to curbs on and distribution. Note, See Possession Pornography: Private of Child The Tensions Be Stanley Georgia Ferber, tween and New York v. Mary 29 Wm. & L. (1987) 187, (“Statutory prohibition possession Rev. private of pornography child is an preventing inefficient and ineffective of means abuse”). problem child serious sexual experience possession The federal illustrates are that laws not an essen- tial strategy. element of a successful enforcement In the Protection of Exploitation Against 95-225, Children Sexual Act of Pub. L. 92 Stat. production, Congress prohibited distribution, and sale of material explicit depicting sexually by §§ conduct minors. See U. S. C. 2251— (1982 ed.). Congress mailing, receipt, also criminalized the or traf- ficking foreign interstate commerce of such for purpose material (1982 2252(a) ed.). § for sale or distribution sale. See 18 U. S. C. But Congress possession. did not criminalize mere In the Child Protection Act 98-292, 204, Congress Pub. L. 98 Stat. broad enacted a revision of law, removing requirement the 1977 trafficking, receipt, and mail- ing purposes be for the of sale or distribution for See 18 sale. U. S. C. 2252(a). Further, § the 1984 Act requirement eliminated a that material production, distribution, sale, its mailing, “obscene” before trafficking, receipt criminal, § be found 2252(a); age could see raised the limit of protection years § to 18 age, 2256(1); from 16 see penal- and added stiffer ties, 2252(b), § see criminal and provisions, §§2253, civil forfeiture see remedy personal injuries. and a civil See 2255. Even in the approach Stanley, foreclosed which rejected precisely same contention makes today: are
“[W]e faced with the argument prohibition obscene materials is a necessary incident to schemes Statutory distribution. prohibiting That argu- ment is based on alleged difficulties of an intent proving distribute or producing evidence of actual distribu- *34 tion. We are not convinced that such difficulties exist, but even if did we do not they think that they would jus- tify of the infringement individual’s to read right or ob- serve what he Because pleases. that right is so funda- mental to our scheme of individual its liberty, restriction may not be by the need justified to ease the administra- tion of otherwise valid criminal laws.” 394 S.,U. 567-568.
At bottom, the Court
is
today
so disquieted
possible
exploitation
the production of the pornography
of children
that it is
to
willing
tolerate the
imposition
criminal penal-
ties for simple
While I
possession,18
share the majority’s
amendments,
Congress
necessary
did not find it
simple posses
ban
Nevertheless,
sion.
Attorney
General’s
Pornography
Commission on
effectively
determined that “the 1977Act
halted the bulk of the commercial
pornography industry,
child
while the 1984revisions have enabled federal of
industry.”
against
noncommercial,
ficials to move
clandestine mutation of that
Justice,
Dept.
Attorney
U. S.
General’s Commission on Por
1
nography,
(1986) (hereafter
Report
Final
Attorney
Report).
General’s
briefly
18 TheCourt
identifies two other interests that it
justify
contends
First,
majority
Ohio’slaw.
describes a state
in destroying
interest
“permanen[t]
Ante,
record” of the victim’s abuse.
at 111.
I do not be
narrowly
lieve that
end,
the law is
tailored to this
require
for there is no
ment that the State show that the child was
production
abused in the
materials or even that the child knew that a photograph was taken. Even
if the
copies
State could recover all
picture,
of the offensive
which seems
highly unlikely, I do not see how a candid shot taken without the minor’s
“haun[tj”
knowledge
years
can
him her in
come, ibid.,
when there
is no indication that the child is even aware of its existence. And if the
purpose
preventing
children,
law’s
is
sexual abuse of
it is underinclusive to
prevent parents
the extent that it does from photographing their chil-
bal-
it has struck the proper
I do not believe
concerns,
inter-
Amendment
the State’s
the First
ance between
means available to Ohio to
of the other
ests,
light
especially
Oakes,
nudity, see,
g.,
Ill Although agree appel I with the Court’s conclusion that lant’s conviction must be reversed because of a violation of process, reasoning due I do not subscribe to the Court’s re garding adequacy appellant’s objections at trial. See majority appellant’s ante, at 122-125. The determines that process rights jury due were violated because the in was not § 2907.323(A)(3) according interpretation structed adopted by to the appeal. the Ohio Court on That is to say, jury prove was not told that “the State must both posssessed depicting scienter and defendant material graphic genitals.” a lewd Ante, exhibition or a focus on appellant’s challenge 123. The Court finds that the trial charge “graphic court’s failure to the “lewd exhibition” and properly appellant focus” elements is before us, because ob 2907.323(A)(3). jected at trial the overbreadth See may outlawed, posses- private while acts of sexual abuse themselves be photographs, magazines, sion of and other materials not. pornography may penalized 19 Thenotion that in order prohibition production, rights possess to facilitate a its whatever ors, proposal newspaper criminally is not unlike a subscribers be held publisher’s receiving newspaper they liable for if aware of the are viola Tribe, tions of child labor laws. Cf. L. American Constitutional Law 915 *36 1988). (2d cases, against might ed. In both sanctions increase concededly permissible regulations production the effectiveness of on the may process. although protect children exploitation But the need to from acute, right newspaper pos it receive be cannot override the to or to sexually home, explicit privacy especially sess materials in the when less restrictive alternatives exist to further the state interests asserted. that conclusion ante, I with Court’s agree 123-124. claim on this point.20 of appellant’s we reach the merits is ap- in what Instead, rest there. Court does not But the con- appellant’s its decision to reverse dictum parently given claim, the Court of the first due process viction on the basis challenge by appellant a due process maintains that separate a scienter addition of the Ohio Court’s Supreme from arising to ob-. failed appellant element is barred because procedurally The to the of a scienter instruction. at trial absence ject §2907.323(A)(3) interpreted must be Court maintains 2901.21(B) Code, pro- Revised which §of of the Ohio light a mens rea where is the appropriate vides that recklessness a indicates nor plainly statute ‘“neither specifies culpability Ante, 9,n. liability.’” strict impose to purpose due appellant’s opinion should not be taken to mean 20 TheCourt’s “graphic focus” ele respect exhibition” and process claim with “lewd object If at trial. procedurally barred now had he failed to ments would be complaint nothing more than a process contention were appellant’s due overbreadth, be suggestion that he would concerning the statute’s plausible. raising object might if failed at trial from it now he barred Rather, his due appellant’s argument. he maintains that that is not But his Supreme affirmed process rights were violated because the Ohio Court “graphic adding elements of “lewd exhibition” conviction after to de had no reason appeal, despite appellant the fact that had focus” on in mind. with these tests sign strategy or introduce evidence defense moreover, appellant purely on the basis of jury, might have convicted depicted definition, materials “nudity” deciding whether the without genitals. nudity” “graphic focus” on or involved “lewd exhibition separate from his overbreadth chal Thus, process claim is appellant’s due (1965), as even Birmingham, 382 S. lenge, see Shuttlesworth ante, at opinion. in its See appears recognize places at some the Court (“Even overbreadth, applying the statute if construed to obviate Clause”). The due might by the Due Process pending cases be barred complete until the Ohio process was not in this case violation reinterpreting the statute. after appellant’s Court conviction affirmed appear an error that does Requiring object at trial to defendants to regard interest legitimate no state appellate stage until the would advance finality procedures. ing compliance state with *37 aspect agree gratuitous this 122-123. I cannot with reasoning. Court’s by appellant must voiced
First, the overbreadth contention fairly encompassing objection to lack an both the be read as “nudity.” requirement to the definition of an and intent objected Appellant alia, criminalization of the to, inter the viewing photograph,” without the of a “mere A Tr. 4. additional elements. need for the State to show language one of is that intent is natural inference from this re- the should have been the elements that State additional any greater quired prove. to to There is no need demand my judgment precision the defendant, a criminal from challenge a as matter federal sufficient, was overbreadth arising process preserve from addi- due claim the the law, acknowledges, majority a element. As the tion of scienter “prohibitions on child in Ferber decision mandated our pornography Ante, at scienter.” include some element of 765). recog- (citing In Ferber, Ferber we 458 U. proc- adding requirement part of was the nized that an intent appel- narrowing statute, overbroad ess of an otherwise overbroad should contention that the statute was lant’s Supreme light. interpreted I find the Ohio Court’s in adopted contradictory: internally a logic it one breath requirement to narrow statute of recklessness scienter challenge, appellant’s then, response overbreadth object appellant failed had breath, next it insisted that a scienter element. the lack of object appellant at trial to if had failed to Second, even jury I element, instructions to include scienter failure reasoning agree Court, of the Ohio cannot with the today, by majority unquestioned omissionof that “the plain [did] not constitute error.” recklessness element contrary, 2d, E. at 1370. To 525 N. 3d, St. every jury an element of judge’s on failure to instruct elementary” “‘bedrock, “axiomatic and offense violates principle,’” Franklin, S. [constitutional] Francis v. (1985) In re Winship, U. S. (quoting (1970)), and is error. Cf. Ca cognizable appeal plain (1989) California, rella v. *38 (Scalia, Clark, Rose 570, U. S. J., concurring judgment); Johnson, (1986)); n. Connecticut v. U. S. (1983) Jackson v. (plurality opinion); Virginia, 320, n. the error is so fundamental “[W]here not to submit to the the essential jury ingredients rest,... offense on which the conviction could it is necessary to take on our motion.” note of it own Screws v. United States, (1945) U. S. (plurality opinion). I us
Thus, would find before due properly appellant’s proc- ess from the addition of the scienter ele- challenge arising ment, as well as his claim from the creation of the stemming “lewd exhibition” focus” tests. “graphic
IV the ideas it lofty, When is speech eloquent expressed easy to find restrictions on them invalid. But were the First discourse, Amendment limited to such our freedom would be distasteful, sterile indeed. Mr. Osborne’s pictures may but the Constitution both his guarantees right possess them and his to avoid under an privately punishment right I overbroad law. dissent. respectfully