# Osborne v. Ohio/Dissent Brennan

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Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS join, dissenting.
I agree with the Court that appellant's conviction must be reversed. I do not agree, however, that Ohio is free on remand to retry him under Ohio Rev.Code Ann. § 2907.323(A)(3) (Supp.1989) as it currently exists. In my view, the state law, even as construed authoritatively by the Ohio Supreme Court, is still fatally overbroad, and our decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), prevents the State from criminalizing appellant's possession of the photographs at issue in this case. I therefore respectfully dissent.
* A.
As written, the Ohio statute is plainly overbroad. Section 2907.323(A)(3) makes it a crime to "[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." Another section defines "nudity" as
"the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state." § 2907.01(H).
In short, §§ 2907.323 and 2907.01(H) use simple nudity, without more, as a way of defining child pornography. But as our prior decisions have made clear, " 'nudity alone' does not place otherwise protected material outside the mantle of the First Amendment." Schad v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) (quoting Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974)); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 224, 110 S.Ct. 596, 604, 107 L.Ed.2d 603 (1990) (plurality opinion); id., at 238, n. 1, 110 S.Ct., at 611, n. 1 (BRENNAN, J., concurring in judgment); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975); California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972). In Erznoznik v. City of Jacksonville, 422 U.S. 205, 213, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975), for example, we invalidated an ordinance that "would [have] bar[red] a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might [have] prohibit[ed] newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach." The Ohio law as written has the same broad coverage and is similarly unconstitutional. B
Wary of the statute's use of the "nudity" standard, the Ohio Supreme Court construed § 2907.323(A)(3) to apply only "where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals." State v. Young, 37 Ohio St.3d 249, 252, 525 N.E.2d 1363, 1368 (1988). The "lewd exhibition" and "graphic focus" tests not only fail to cure the overbreadth of the statute, but they also create a new problem of vagueness.
* The Court dismisses appellant's overbreadth contention in a single cursory paragraph. Relying exclusively on our previous decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the majority reasons that the "lewd exhibition" standard adequately narrows the statute's ambit because "[w]e have upheld similar language against overbreadth challenges in the past." Ante, at 114. The Court's terse explanation is unsatisfactory, since Ferber involved a law that differs in crucial respects from the one here.
The New York law at issue in Ferber criminalized the use of a child in a " '[s ]exual performance,' " defined as " 'any performance or part thereof which includes sexual conduct by a child less than sixteen years of age.' " 458 U.S., at 751, 102 S.Ct., at 3351 (quoting N.Y.Penal Law § 263.00(1) (McKinney 1980)). " ' "Sexual conduct " ' " was in turn defined as " 'actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.' " 458 U.S., at 751, 102 S.Ct., at 3351 (quoting § 263.00(3)). Although we acknowledged that "nudity, without more[,] is protected expression," id., at 765, n. 18, 102 S.Ct., at 3359, n. 18, we found that the statute was not overbroad because only "a tiny fraction of materials within the statute's reach" was constitutionally protected. Id., at 773, 102 S.Ct., at 3363; see also id., at 776, 102 S.Ct., at 3364 (BRENNAN, J., concurring in judgment). We therefore upheld the conviction of a bookstore proprietor who sold films depicting young boys masturbating.
The Ohio law is distinguishable for several reasons. First, the New York statute did not criminalize materials with a "graphic focus " on the genitals, and, as discussed further below, Ohio's "graphic focus" test is impermissibly capacious. Even setting aside the "graphic focus" element, the Ohio Supreme Court's narrowing construction is still overbroad because it focuses on "lewd exhibitions of nudity " rather than "lewd exhibitions of the genitals " in the context of sexual conduct, as in the New York statute at issue in Ferber. Ohio law defines "nudity" to include depictions of pubic areas, buttocks, the female breast, and covered male genitals "in a discernibly turgid state," as well as depictions of the genitals. On its face, then, the Ohio law is much broader than New York's.
In addition, whereas the Ohio Supreme Court's interpretation uses the "lewd exhibition of nudity" test standing alone, the New York law employed the phrase " 'lewd exhibition of the genitals' " in the context of a longer list of examples of sexual conduct: " 'actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, [and] sado-masochistic abuse.' " 458 U.S., at 751, 102 S.Ct., at 3351. This syntax was important to our decision in Ferber. We recognized the potential for impermissible applications of the New York statute, see id., at 773, 102 S.Ct., at 3363, but in view of the examples of "sexual conduct" provided by the statute, we were willing to assume that the New York courts would not "widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on 'lewd exhibition[s] of the genitals.' " Ibid. (emphasis added). In the Ohio statute, of course, there is no analog to the elaborate definition of "sexual conduct" to serve as a similar limit. Hence, while the New York law could be saved at least in part by the notion of ejusdem generis, see 2A C. Sands, Sutherland on Statutory Construction § 47.17, p. 166 (4th ed. 1984), the Ohio Supreme Court's construction of its law cannot.
Indeed, the broad definition of nudity in the Ohio statutory scheme means that "child pornography" could include any photograph depicting a "lewd exhibition" of even a small portion of a minor's buttocks or any part of the female breast below the nipple. Pictures of topless bathers at a Mediterranean beach, of teenagers in revealing dresses, and even of toddlers romping unclothed, all might be prohibited. Furthermore, the Ohio law forbids not only depictions of nudity per se, but also depictions of the buttocks, breast, or pubic area with less than a "full, opaque covering." Thus, pictures of fashion models wearing semitransparent clothing might be illegal, as might a photograph depicting a fully clad male that nevertheless captured his genitals "in a discernibly turgid state." The Ohio statute thus sweeps in many types of materials that are not "child pornography," as we used that term in Ferber, but rather that enjoy full First Amendment protection.
It might be objected that many of these depictions of nudity do not amount to "lewd exhibitions." But in the absence of any authoritative definition of that phrase by the Ohio Supreme Court, we cannot predict which ones. Many would characterize a photograph of a seductive fashion model or alluringly posed adolescent on a topless European beach as "lewd," although such pictures indisputably enjoy constitutional protection. 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 even to hazard a guess as to what a "lewd exhibition" might mean; it is forced to rely entirely on an inapposite case-Ferber-that simply did not discuss, let alone decide, the central issue here.
The Ohio Supreme Court provided few clues as to the meaning of the phrase "lewd exhibition of nudity." The court distinguished "child pornography" from "obscenity," see 37 Ohio St.3d, at 257, 525 N.E.2d, at 1372, thereby implying that it did not believe that an exhibition was required to be "obscene" in order to qualify as "lewd." But it supplied no authoritative definition-a disturbing omission in light of the absence of the phrase "lewd exhibition" from the statutory definition section of the Sex Offenses chapter of the Ohio Revised Code. See § 2907.01. In fact, the word "lewd" does not appear in the statutory definition of any crime involving obscenity or other sexually oriented materials in the Ohio Revised Code. See §§ 2907.31-2907.35. Thus, when the Ohio Supreme Court grafted the "lewd exhibition" test onto the definition of nudity, it was venturing into uncharted territory.
Moreover, there is no longstanding, commonly understood definition of "lewd" upon which the Ohio Supreme Court's construction might be said to draw that can save the "lewd exhibition" standard from impermissible vagueness. At common law, the term "lewd" included "any gross indecency so notorious as to tend to corrupt community morals," Collins v. State, 160 Ga.App. 680, 682, 288 S.E.2d 43, 45 (1981), an approach that was "subjective" and dependent entirely on a speaker's "social, moral, and cultural bias." Morgan v. Detroit, 389 F.Supp. 922, 930 (ED Mich.1975). Not surprisingly, States with long experience in applying indecency laws have learned that the word "lewd" is "too indefinite and uncertain to be enforceable." Courtemanche v. State, 507 S.W.2d 545, 546 (Tex.Cr.App.1974). See also Attwood v. Purcell, 402 F.Supp. 231, 235 (Ariz.1975); District of Columbia v. Walters, 319 A.2d 332, 335-336 (D.C.1974). The term is often defined by reference to such pejorative synonyms as " 'lustful, lascivious, unchaste, wanton, or loose in morals and conduct.' " People v. Williams, 59 Cal.App.3d 225, 229, 130 Cal.Rptr. 460, 462 (1976). But "the very phrases and synonyms through which meaning is purportedly ascribed serve to obscure rather than clarify." State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974). "To instruct the jury that a 'lewd or dissolute' act is one which is morally 'loose,' or 'lawless,' or 'foul' piles additional uncertainty upon the already vague words of the statute. In short, vague statutory language is not rendered more precise by defining it in terms of synonyms of equal or greater uncertainty." Pryor v. Municipal Court for Los Angeles, 25 Cal.3d 238, 249, 158 Cal.Rptr. 330, 336, 599 P.2d 636, 642 (1979).
The Ohio Supreme Court, moreover, did not specify the perspective from which "lewdness" is to be determined. A "reasonable" person's view of "lewdness"? A reasonable pedophile's? An "average" person applying contemporary local community standards? Statewide standards? Nationwide standards? Cf. Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 133-134, 109 S.Ct. 2829, 2840-2841, 106 L.Ed.2d 93 (1989); Pope v. Illinois, 481 U.S. 497, 500-501, 107 S.Ct. 1918, 1920-1921, 95 L.Ed.2d 439 (1987); Pinkus v. United States, 436 U.S. 293, 302-303, 98 S.Ct. 1808, 1814-1815, 56 L.Ed.2d 293 (1978); Smith v. United States, 431 U.S. 291, 300, n. 6, 97 S.Ct. 1756, 1763, n. 6, 52 L.Ed.2d 324 (1977); Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973); Mishkin v. New York, 383 U.S. 502, 508, 86 S.Ct. 958, 963, 16 L.Ed.2d 56 (1966). In sum, the addition of a "lewd exhibition" standard does not narrow adequately the statute's reach. If anything, it creates a new problem of vagueness, affording the public little notice of the statute's ambit and providing an avenue for " 'policemen, prosecutors, and juries to pursue their personal predilections.' " Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974)); see also Houston v. Hill, 482 U.S. 451, 465, and n. 15, 107 S.Ct. 2502, and n. 15, 96 L.Ed.2d 398 (1987). Given the important First Amendment interests at issue, the vague, broad sweep of the "lewd exhibition" language means that it cannot cure § 2907.323(A)(3)'s overbreadth.
The Ohio Supreme Court also added a "graphic focus" element to the nudity definition. This phrase, a stranger to obscenity regulation, suffers from the same vagueness difficulty as "lewd exhibition." Although the Ohio Supreme Court failed to elaborate what a "graphic focus" might be, the test appears to involve nothing more than a subjective estimation of the centrality or prominence of the genitals in a picture or other representation. Not only is this factor dependent on the perspective and idiosyncrasies of the observer, it also is unconnected to whether the material at issue merits constitutional protection. Simple nudity, no matter how prominent or "graphic," is within the bounds of the First Amendment. Michelangelo's "David" might be said to have a "graphic focus" on the genitals, for it plainly portrays them in a manner unavoidable to even a casual observer. Similarly, a painting of a partially clad girl could be said to involve a "graphic focus," depending on the picture's lighting and emphasis, as could the depictions of nude children on the friezes that adorn our courtroom. Even a photograph of a child running naked on the beach or playing in the bathtub might run afoul of the law, depending on the focus and camera angle.
In sum, the "lewd exhibition" and "graphic focus" tests are too vague to serve as any workable limit. Because the statute, even as construed authoritatively by the Ohio Supreme Court, is impermissibly overbroad, I would hold that appellant cannot be retried under it.
Even if the statute was not overbroad, our decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), forbids the criminalization of appellant's private possession in his home of the materials at issue. "If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Id., at 565, 89 S.Ct., at 1248. Appellant was convicted for possessing four photographs of nude minors, seized from a desk drawer in the bedroom of his house during a search executed pursuant to a warrant. Appellant testified that he had been given the pictures in his home by a friend. There was no evidence that the photographs had been produced commercially or distributed. All were kept in an album that appellant had assembled for his personal use and had possessed privately for several years.
In these circumstances, the Court's focus on Ferber rather than Stanley is misplaced. Ferber held only that child pornography is "a category of material the production and distribution of which is not entitled to First Amendment protection," 458 U.S., at 765, 102 S.Ct., at 3359 (emphasis added); our decision did not extend to private possession. The authority of a State to regulate the production and distribution of such materials is not dispositive of its power to penalize possession. Indeed, in Stanley we assumed that the films at issue were obscene and that their production, sale, and distribution thus could have been prohibited under our decisions. See 394 U.S., at 559, n. 2, 89 S.Ct., at 1244, n. 2. Nevertheless, we reasoned that although the States "retain broad power to regulate obscenity"-and child pornography as well-"that power simply does not extend to mere possession by the individual in the privacy of his own home." Id., at 568, 89 S.Ct., at 1249. Ferber did nothing more than place child pornography on the same level of First Amendment protection as obscene adult pornography, meaning that its production and distribution could be proscribed. The distinction established in Stanley between what materials may be regulated and how they may be regulated still stands. See United States v. Miller, 776 F.2d 978, 980, n. 4 (CA11 1985) (per curiam ); People v. Keyes, 135 Misc.2d 993, 995, 517 N.Y.S.2d 696, 698 (1987). As Justice WHITE remarked in a different context: "[T]he personal constitutional rights of those like Stanley to possess and read obscenity in their homes and their freedom of mind and thought do not depend on whether the materials are obscene or whether obscenity is constitutionally protected. Their rights to have and view that material in private are independently saved by the Constitution." United States v. Reidel, 402 U.S. 351, 356, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813 (1971).
The Court today finds Stanley inapposite on the ground that "the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley." Ante, at 108. The majority's analysis does not withstand scrutiny. While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it. Indeed, the State already has enacted a panoply of laws prohibiting the creation, sale, and distribution of child pornography and obscenity involving minors. See n. 1, supra. Ohio has not demonstrated why these laws are inadequate and why the State must forbid mere possession as well.
The Court today speculates that Ohio "will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand." Ante, at 109-110. Criminalizing possession is thought necessary because "since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution." Ante, at 110-111. As support, the Court notes that 19 States have "found it necessary" to prohibit simple possession. Ibid. Even were I to accept the Court's empirical assumptions, I would find the Court's approach foreclosed by Stanley, which rejected precisely the same contention Ohio makes today:
"[W]e are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties exist, but even if they did we do not think that they would justify infringement of the individual's right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws." 394 U.S., at 567-568, 89 S.Ct., at 1249-1250.
At bottom, the Court today is so disquieted by the possible exploitation of children in the production of the pornography that it is willing to tolerate the imposition of criminal penalties for simple possession. While I share the majority's concerns, I do not believe that it has struck the proper balance between the First Amendment and the State's interests, especially in light of the other means available to Ohio to protect children from exploitation and the State's failure to demonstrate a causal link between a ban on possession of child pornography and a decrease in its production. "The existence of the State's power to prevent the distribution of obscene matter" and of child pornography-"does not mean that there can be no constitutional barrier to any form of practical exercise of that power." Smith v. California, 361 U.S. 147, 155, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959).
Although I agree with the Court's conclusion that appellant's conviction must be reversed because of a violation of due process, I do not subscribe to the Court's reasoning regarding the adequacy of appellant's objections at trial. See ante, at 122-125. The majority determines that appellant's due process rights were violated because the jury was not instructed according to the interpretation of § 2907.323(A)(3) adopted by the Ohio Supreme Court on appeal. That is to say, the jury was not told that "the State must prove both scienter and that the defendant possessed material depicting a lewd exhibition or a graphic focus on genitals." Ante, at 123. The Court finds that appellant's challenge to the trial court's failure to charge the "lewd exhibition" and "graphic focus" elements is properly before us, because appellant objected at trial to the overbreadth of § 2907.323(A)(3). See ante, at 123-124. I agree with the Court's conclusion that we may reach the merits of appellant's claim on this point.
But the Court does not rest there. Instead, in what is apparently dictum given its decision to reverse appellant's conviction on the basis of the first due process claim, the Court maintains that a separate due process challenge by appellant arising from the Ohio Supreme Court's addition of a scienter element is procedurally barred because appellant failed to object at trial to the absence of a scienter instruction. The Court maintains that § 2907.323(A)(3) must be interpreted in light of § 2901.21(B) of the Ohio Revised Code, which provides that recklessness is the appropriate mens rea where a statute " 'neither specifies culpability nor plainly indicates a purpose to impose strict liability.' " Ante, at 113, n. 9, and 1703. I cannot agree with this gratuitous aspect of the Court's reasoning.
First, the overbreadth contention voiced by appellant must be read as fairly encompassing an objection both to the lack of an intent requirement and to the definition of "nudity." Appellant objected to, inter alia, the criminalization of the "mere possession or viewing of a photograph," without the need for the State to show additional elements. Tr. 4. A natural inference from this language is that intent is one of the additional elements that the State should have been required to prove. There is no need to demand any greater precision from a criminal defendant, and in my judgment the overbreadth challenge was sufficient, as a matter of federal law, to preserve the due process claim arising from the addition of a scienter element. As the majority acknowledges, our decision in Ferber mandated that "prohibitions on child pornography include some element of scienter." Ante, at 115 (citing Ferber, 458 U.S., at 765, 102 S.Ct., at 3358). In Ferber we recognize that adding an intent requirement was part of the process of narrowing an otherwise overbroad statute, and appellant's contention that the statute was overbroad should be interpreted in that light. I find the Ohio Supreme Court's logic internally contradictory: In one breath it adopted a scienter requirement of recklessness to narrow the statute in response to appellant's overbreadth challenge, and then, in the next breath, it insisted that appellant had failed to object to the lack of a scienter element.
Second, even if appellant had failed to object at trial to the failure of the jury instructions to include a scienter element, I cannot agree with the reasoning of the Ohio Supreme Court, unquestioned by the majority today, that "the omission of the element of recklessness [did] not constitute plain error." 37 Ohio St.3d, at 254, 525 N.E.2d, at 1370. To the contrary, a judge's failure to instruct the jury on every element of an offense violates a " 'bedrock, "axiomatic and elementary" [constitutional] principle,' " Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985) (quoting In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970)), and is cognizable on appeal as plain error. Cf. Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (SCALIA, J., concurring in judgment); Rose v. Clark, 478 U.S. 570, 580, n. 8, 106 S.Ct. 3101, 3107 n. 8, 92 L.Ed.2d 460 (1986); Connecticut v. Johnson, 460 U.S. 73, 85-86, 103 S.Ct. 969, 976-977, 74 L.Ed.2d 823 (1983) (plurality opinion); Jackson v. Virginia, 443 U.S. 307, 320, n. 14, 99 S.Ct. 2781, 2790, n. 14, 61 L.Ed.2d 560 (1979). "[W]here the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, . . . it is necessary to take note of it on our own motion." Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945) (plurality opinion).
Thus, I would find properly before us appellant's due process challenge arising from the addition of the scienter element, as well as his claim stemming from the creation of the "lewd exhibition" and "graphic focus" tests.
When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed. Mr. Osborne's pictures may be distasteful, but the Constitution guarantees both his right to possess them privately and his right to avoid punishment under an overbroad law. I respectfully dissent.

## Notes

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