# Osborne v. Ohio
## Concurring Opinion

    Blackmun

## Dissenting Opinion

    Brennan
United States Supreme Court
496 U.S. 103
Osborne v. Ohio
No. 88-5986 Argued: Dec. 5, 1989. --- Decided: April 18, 1990
See 496 U.S. 913, 110 S.Ct. 2605.
Syllabus by the Court
After Ohio police found photographs in petitioner Osborne's home, each of which depicted a nude male adolescent posed in a sexually explicit position, he was convicted of violating a state statute prohibiting any person from possessing or viewing any material or performance showing a minor who is not his child or ward in a state of nudity, unless (a) the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein, or (b) the possessor knows that the minor's parents or guardian has consented in writing to such photographing or use of the minor. An intermediate appellate court and the State Supreme Court affirmed the conviction. The latter court rejected Osborne's contention that the First Amendment prohibits the States from proscribing the private possession of child pornography. The court also found that the statute is not unconstitutionally overbroad, since, in light of its specific exceptions, it must be read as only applying to depictions of nudity involving a lewd exhibition or graphic focus on the minor's genitals, and since scienter is an essential element of the offense. In rejecting Osborne's contention that the trial court erred in not requiring the government to prove lewd exhibition and scienter as elements of his crime, the court emphasized that he had not objected to the jury instructions given at his trial and stated that the failures of proof did not amount to plain error.
Held:
1. Ohio may constitutionally proscribe the possession and viewing of child pornography. Even assuming that Osborne has a valid First Amendment interest in such activities, this case is distinct from Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 which struck down a Georgia law outlawing the private possession of obscene material on the ground that the State's justifications for the law-primarily, that obscenity would poison the minds of its viewers-were inadequate. In contrast, Ohio does not rely on a paternalistic interest in regulating Osborne's mind, but has enacted its law on the basis of its compelling interests in protecting the physical and psychological well-being of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials. See New York v. Ferber, 458 U.S. 747, 756-758, 761-762, 102 S.Ct. 3348, 3354-3355, 3356-3357, 73 L.Ed.2d 1113. Moreover, Ohio's ban encourages possessors to destroy such materials, which permanently record the victim's abuse and thus may haunt him for years to come, see id., at 759, 102 S.Ct., at 3355, and which, available evidence suggests, may be used by pedophiles to seduce other children. Pp. 108-111.
2. Osborne's First Amendment overbreadth arguments are unpersuasive. Pp. 111-122.
(a) The Ohio statute is not unconstitutionally overbroad. Although, on its face, the statute purports to prohibit constitutionally protected depictions of nudity, it is doubtful that any overbreadth would be "substantial" under this Court's cases, in light of the statutory exemptions and "proper purposes" provisions. In any event, the statute, as construed by the Ohio Supreme Court, plainly survives overbreadth scrutiny. By limiting the statute's operation to nudity that constitutes lewd exhibition or focuses on genitals, that court avoided penalizing persons for viewing or possessing innocuous photographs of naked children and thereby rendered the "nudity" language permissible. See Ferber, supra, at 765, 102 S.Ct., at 3359. Moreover, the statute's failure, on its face, to provide a mens rea requirement is cured by the court's conclusion that the State must establish scienter under the Ohio default statute specifying that recklessness applies absent a statutory intent provision. Pp. 111-115.
(b) It was not impermissible for the State Supreme Court to rely on its narrowed construction of the statute when evaluating Osborne's overbreadth claim. A statute as construed may be applied to conduct occurring before the construction, provided such application affords fair warning to the defendant. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 491, n. 7, 85 S.Ct. 1116, 1123, n. 7, 14 L.Ed.2d 22. It is obvious from the face of the child pornography statute, and from its placement within the "Sexual Offenses" chapter of the Ohio Code, that Osborne had notice that his possession of the photographs at issue was proscribed. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258; and Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260, distinguished. Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176-which stands for the proposition that where a State Supreme Court narrows an unconstitutionally overbroad statute, the State must ensure that defendants are convicted under the statute as it is subsequently construed and not as it was originally written-does not conflict with the holding in this case. Nor does Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493-in which five Justices agreed in a separate opinion that a state legislature could not cure a potential overbreadth problem through a postconviction statutory amendment-support Osborne's view that an overbroad statute is void as written, such that a court may not narrow it, affirm a conviction on the basis of the narrowing construction, and leave the statute in full force. Since courts routinely adopt the latter course, acceptance of Osborne's proposition would require a radical reworking of American law. Moreover, the Oakes approach is based on the fear that legislators who know they can cure their own mistakes by amendment without significant cost may not be careful to avoid drafting overbroad laws in the first place. A similar effect will not be likely if a judicial construction of a statute to eliminate overbreadth is allowed to be applied in the case before the Court, since legislatures cannot be sure that the statute, when examined by a court, will be saved by a narrowing construction rather than invalidated for overbreadth, and since applying even a narrowed statute to pending cases might be barred by the Due Process Clause. Furthermore, requiring that statutes be facially invalidated whenever overbreadth is perceived would very likely invite reconsideration or redefinition of the overbreadth doctrine in a way that would not serve First Amendment interests. Pp. 115-122.
3. Nevertheless, due process requires that Osborne's conviction be reversed and the case remanded for a new trial, since it is unclear whether the conviction was based on a finding that the State had proved each of the elements of the offense. It is true that this Court is precluded from reaching the due process challenge with respect to the scienter element of the crime because counsel's failure to comply with the state procedural rule requiring an objection to faulty jury instructions constitutes an independent state-law ground adequate to support the result below. However, this Court is not so barred with respect to counsel's failure to object to the failure to instruct on lewdness, since, shortly before the brief trial, counsel moved to dismiss on the ground that the statute was overbroad in its failure to allow the viewing of innocent nude photographs. Nothing would be gained by requiring counsel to object a second time, specifically to the jury instructions. The assertion of federal rights, when plainly and reasonably made, may not be defeated under the name of local practice. Cf. Douglas v. Alabama, 380 U.S. 415, 421-422, 85 S.Ct. 1074, 1078-1079, 13 L.Ed.2d 934. Pp. 122-125.
37 Ohio St.3d 249, 525 N.E.2d 1363, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 126. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 126.
S. Adele Shank, for appellant.
Ronald J. O'Brien, Columbus, Ohio, for appellee.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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