Osborne v. Ohio


No. 88-5986 Argued: Dec. 5, 1989 --- Decided: April 18, 1990
Justice WHITE delivered the opinion of the Court.

In order to combat child pornography, Ohio enacted Rev.Code Ann. § 2907.323(A)(3) (Supp.1989), which provides in pertinent part:

(A) No person shall do any of the following:

* * * *

(3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies:

(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.

(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing [p107] or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.

Petitioner, Clyde Osborne, was convicted of violating this statute and sentenced to six months in prison after the Columbus, Ohio, police, pursuant to a valid search, found four photographs in Osborne's home. Each photograph depicts a nude male adolescent posed in a sexually explicit position. [n1]

The Ohio Supreme Court affirmed Osborne's conviction after an intermediate appellate court did the same. State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988). Relying on one of its earlier decisions, the Court first rejected Osborne's contention that the First Amendment prohibits the States from proscribing the private possession of child pornography.

Next, the Court found that § 2907.323(A)(3) is not unconstitutionally overbroad. In so doing, the Court, relying on the statutory exceptions, read § 2907.323(A)(3) as only applying to depictions of nudity involving a lewd exhibition or graphic focus on a minor's genitals. The Court also found that scienter is an essential element of a § 2907.323(A)(3) offense. Osborne objected that the trial judge had not insisted that the government prove lewd exhibition and scienter as elements of his crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the [p108] jury instructions given at his trial and the Court did not believe that the failures of proof amounted to plain error. [n2]

The Ohio Supreme Court denied a motion for rehearing, and granted a stay pending appeal to this Court. We noted probable jurisdiction last June. 492 U.S. 904.


The threshold question in this case is whether Ohio may constitutionally proscribe the possession and viewing of child pornography or whether, as Osborne argues, our decision in Stanley v. Georgia, 394 U.S. 557 (1969), compels the contrary result. In Stanley, we struck down a Georgia law outlawing the private possession of obscene material. We recognized that the statute impinged upon Stanley's right to receive information in the privacy of his home, and we found Georgia's justifications for its law inadequate. Id. at 564-568. [n3]

Stanley should not be read too broadly. We have previously noted that Stanley was a narrow holding, see United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 127 (1973), and, since the decision in that case, the value of permitting child pornography has been characterized as "exceedingly modest, if not de minimis." New York v. Ferber, 458 U.S. 747, 762 (1982). But assuming, for the sake of argument, that Osborne has a First Amendment interest in viewing and possessing child pornography, we nonetheless find this case distinct from Stanley because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley. Every court to address the issue has so concluded. See e.g., People v. Geever, 122 Ill.2d 313, 327-328, 119 Ill.Dec. 341, 347-348, 522 N.E.2d 1200, 1206-1207 (1988); [p109] Felton v. State, 526 So.2d 635, 637 (Ala.Ct.Crim.App.), aff'd, sub nom. Ex parte Felton, 526 So.2d 638, 641 (Ala.1988); State v. Davis, 53 Wash.App. 502, 505, 768 P.2d 499, 501 (1989); Savery v. Texas, 767 S.W.2d 242, 245 (Tex.App.1989); United States v. Boffardi, 684 F.Supp. 1263, 1267 (SDNY 1988).

In Stanley, Georgia primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers. 394 U.S. at 565. [n4] We responded that

[w]hatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.

Id. at 566. The difference here is obvious: the State does not rely on a paternalistic interest in regulating Osborne's mind. Rather, Ohio has enacted § 2907.323(A)(3) in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.

It is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and psychological wellbeing of a minor" is "compelling." . . . The legislative judgment, as well as the judgment found in relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.

Ferber, 458 U.S. at 756-758 (citations omitted). It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, [p110] thereby decreasing demand. In Ferber, where we upheld a New York statute outlawing the distribution of child pornography, we found a similar argument persuasive:

[t]he advertising and selling of child pornography provide an economic motive for, and are thus an integral part of, the production of such materials, an activity illegal throughout the Nation.

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.

Id. at 761-762, quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949).

Osborne contends that the State should use other measures, besides penalizing possession, to dry up the child pornography market. Osborne points out that, in Stanley, we rejected Georgia's argument that its prohibition on obscenity possession was a necessary incident to its proscription on obscenity distribution. 394 U.S. at 567-568. This holding, however, must be viewed in light of the weak interests asserted by the State in that case. Stanley itself emphasized that we did not

mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials. . . . In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.

Id. at 568, n. 11. [n5]

Given the importance of the State's interest in protecting the victims of child pornography, we cannot fault Ohio for attempting to stamp out this vice at all levels in the distribution chain. According to the State, 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. Indeed, 19 States [p111] have found it necessary to proscribe the possession of this material. [n6]

Other interests also support the Ohio law. First, as Ferber recognized, the materials produced by child pornographers permanently record the victim's abuse. The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come. 458 U.S. at 759. The State's ban on possession and viewing encourages the possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity. [n7]

Given the gravity of the State's interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography.


Osborne next argues that, even if the State may constitutionally ban the possession of child pornography, his conviction [p112] is invalid because § 2907.323(A)(3) is unconstitutionally overbroad in that it criminalizes an intolerable range of constitutionally protected conduct. [n8] In our previous decisions discussing the First Amendment overbreadth doctrine, we have repeatedly emphasized that, where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only "real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Even where a statute at its margins infringes on protected expression,

facial invalidation is inappropriate if the "remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct. . . ."

New York v. Ferber, 458 U.S. at 770, n. 25.

The Ohio statute, on its face, purports to prohibit the possession of "nude" photographs of minors. We have stated that depictions of nudity, without more, constitute protected expression. See Ferber, supra, at 765, n. 18. Relying on this observation, Osborne argues that the statute, as written, is substantially overbroad. We are sceptical of this claim because, in light of the statute's exemptions and "proper purposes" provisions, the statute may not be substantially overbroad under our cases. [n9] However that may be, Osborne's [p113] overbreadth challenge, in any event, fails because the statute, as construed by the Ohio Supreme Court on Osborne's direct appeal, plainly survives overbreadth scrutiny. Under the Ohio Supreme Court reading, the statute prohibits

the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged.

37 Ohio St.3d at 252, 525 N.E.2d at 1368. [n10] By limiting the statute's operation in [p114] this manner, the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children. We have upheld similar language against overbreadth challenges in the past. In Ferber, we affirmed a conviction under a New York statute that made it a crime to promote the "‘lewd exhibition of [a child's] genitals.'" 458 U.S. at 751. We noted that

[t]he term "lewd exhibition of the genitals" is not unknown in this area and, indeed, was given in Miller [v. California, 413 U.S. 15 (1973)] as an example of a permissible regulation.

Id. at 765. [n11] [p115]

The Ohio Supreme Court also concluded that the State had to establish scienter in order to prove a violation of § 2907.323(A)(3) based on the Ohio default statute specifying that recklessness applies when another statutory provision lacks an intent specification. See n. 9, supra. The statute on its face lacks a mens rea requirement, but that omission brings into play and is cured by another law that plainly satisfies the requirement laid down in Ferber that prohibitions on child pornography include some element of scienter. 458 U.S. at 765.

Osborne contends that it was impermissible for the Ohio Supreme Court to apply its construction of § 2907.323(A)(3) to him -- i.e., to rely on the narrowed construction of the statute when evaluating his overbreadth claim. Our cases, however, have long held that a statute as construed

may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendan[t].

Dombrowski v. Pfister, 380 U.S. 479, 491, n. 7 (citations omitted). [n12] In Hamling v. United States, [p116] 418 U.S. 87 (1974), for example, we reviewed the petitioners' convictions for mailing and conspiring to mail an obscene advertising brochure under 18 U.S.C. § 1461. That statute makes it a crime to mail an "obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance." In Hamling, for the first time, we construed the term "obscenity" as used in § 1461

to be limited to the sort of "patently offensive representations or depictions of that specific ‘hard core' sexual conduct given as examples in Miller v. California."

In light of this construction, we rejected the petitioners' facial challenge to the statute as written, and we affirmed the petitioners' convictions under the section after finding that the petitioners had fair notice that their conduct was criminal. 418 U.S. at 114-116.

Like the Hamling petitioners, Osborne had notice that his conduct was proscribed. It is obvious from the face of § 2907.323(A)(3) that the goal of the statute is to eradicate child pornography. The provision criminalizes the viewing and possessing of material depicting children in a state of nudity for other than "proper purposes." The provision appears in the "Sex Offenses" chapter of the Ohio Code. Section 2907.323 is preceded by § 2907.322, which proscribes "[p]andering sexually oriented matter involving a minor," and followed by § 2907.33, which proscribes "[d]eception to obtain matter harmful to juveniles." That Osborne's photographs of adolescent boys in sexually explicit situations constitute child pornography hardly needs elaboration. Therefore, although § 2907.323(A)(3), as written, may have been imprecise at its fringes, someone in Osborne's position would not be surprised to learn that his possession of the four photographs at issue in this case constituted a crime.

Because Osborne had notice that his conduct was criminal, his case differs from three cases upon which he relies: Bouie v. City of Columbia, 378 U.S. 347 (1964), Rabe v. Washington, [p117] 405 U.S. 313 (1972), and Marks v. United States, 430 U.S. 188 (1977). In Bouie, the petitioners had refused to leave a restaurant after being asked to do so by the restaurant's manager. Although the manager had not objected when the petitioners entered the restaurant, the petitioners were convicted of violating a South Carolina trespass statute proscribing "‘entry upon the lands, of another . . . after notice from the owner or tenant prohibiting such entry.'" 378 U.S. at 349. Affirming the convictions, the South Carolina Supreme Court construed the trespass law as also making it a crime for an individual to remain on another's land after being asked to leave. We reversed the convictions on due process grounds, because the South Carolina Supreme Court's expansion of the statute was unforeseeable and therefore the petitioners had no reason to suspect that their conduct was criminal. Id. at 350-352.

Likewise, in Rabe v. Washington, supra, the petitioner had been convicted of violating a Washington obscenity statute that, by its terms, did not proscribe the defendant's conduct. On petitioner's appeal, the Washington Supreme Court nevertheless affirmed the petitioner's conviction after construing the Washington obscenity statute to reach the petitioner. We overturned the conviction because the Washington Supreme Court's broadening of the statute was unexpected; therefore the petitioner had no warning that his actions were proscribed. Id. at 315.

And in Marks v. United States, supra, we held that the retroactive application of the obscenity standards announced in Miller v. California, 413 U.S. 15 (1973), to the potential detriment of the petitioner, violated the Due Process Clause because, at the time that the defendant committed the challenged conduct, our decision in Memoirs v. Massachusetts, 383 U.S. 413 (1966), provided the governing law. The defendant could not suspect that his actions would later become criminal when we expanded the range of constitutionally proscribable conduct in Miller. [p118]

Osborne suggests that our decision here is inconsistent with Shuttlesworth v. Birmingham, 382 U.S. 87 (1965); we disagree. In Shuttlesworth, the defendant had been convicted of violating an Alabama statute that, when read literally, provided that "a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city." Id. at 90. We stated that "[t]he constitutional vice of so broad a provision needs no demonstration." Ibid. As subsequently construed by the Alabama Supreme Court, however, the statute merely made it criminal for an individual that was blocking free passage along a public street to disobey a police officer's order to move. We noted that

[i]t is our duty, of course, to accept this state judicial construction of the ordinance. . . . As so construed, we cannot say that the ordinance is unconstitutional, though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.

Id. at 91. We nevertheless reversed the defendant's conviction because it was not clear that the state had convicted the defendant under the statute as construed, rather than as written. Id. at 91-92. [n13] Shuttlesworth, then 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; this proposition in no way conflicts with our holding in this case.

Finally, despite Osborne's contention to the contrary, we do not believe that Massachusetts v. Oakes, 491 U.S. 576 (1989), supports his theory of this case. In Oakes, the petitioner challenged a Massachusetts pornography statute as [p119] overbroad; since the time of the defendant's alleged crime, however, the state had substantially narrowed the statute through a subsequent legislative enactment -- an amendment to the statute. In a separate opinion, five Justices agreed that the state legislature could not cure the potential overbreadth problem through the subsequent legislative action; the statute was void as written. Id. at 585-586.

Osborne contends that Oakes stands for a similar but distinct proposition that, when faced with a potentially overinclusive statute, a court may not construe the statute to avoid overbreadth problems and then apply the statute, as construed, to past conduct. The implication of this argument is that, if a statute is overbroad as written, then the statute is void and incurable. As a result, when reviewing a conviction under a potentially overbroad statute, a court must either affirm or strike down the statute on its face, but the court may not, as the Ohio Supreme Court did in this case, narrow the statute, affirm on the basis of the narrowing construction, and leave the statute in full force. We disagree.

First, as indicated by our earlier discussion, if we accepted this proposition, it would require a radical reworking of our law. Courts routinely construe statutes so as to avoid the statutes' potentially overbroad reach, apply the statute in that case, and leave the statute in place. In Roth v. United States, 354 U.S. 476 (1957), for example, the court construed the open-ended terms used in 18 U.S.C. § 1461 which prohibits the mailing of material that is "obscene, lewd, lascivious, indecent, filthy or vile." Justice Harlan characterized Roth in this way:

The words of § 1461, "obscene, lewd, lascivious, indecent, filthy or vile," connote something that is portrayed in manner so offensive as to make is unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the [p120] statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennet, 24 Fed.Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489 "taken as a whole appeals to prurient interest." Manuel Enterprises v. Day, 370 U.S. 478, 482-484 (1962) (footnotes omitted); (emphasis in original).

See also Hamling, 418 U.S. at 112 (quoting the above). The petitioner's conviction was affirmed in Roth, and federal obscenity law was left in force. 354 U.S. at 494. [n14] We, moreover, have long respected the state Supreme Courts' ability to narrow state statutes so as to limit the statute's scope to unprotected conduct. See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968).

Second, we do not believe that Oakes compels the proposition that Osborne urges us to accept. In Oakes, Justice SCALIA, writing for himself and four others, reasoned that

The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post that is, after the offending statute is enacted, but also ex ante that is, when the legislature is contemplating what sort of statute to enact. If the promulgation of overbroad laws affecting speech was cost free . . . that is, if no conviction of constitutionally proscribable conduct would be [p121] lost so long as the offending statute was narrowed before the final appeal, . . . then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place. When one takes account of those overbroad statutes that are never challenged, and of the time that elapses before the ones that are challenged are amended to come within constitutional bounds, a substantial amount of legitimate speech would be "chilled." . . .

491 U.S. at 586 (emphasis in original). In other words, five of the Oakes Justices feared that, if we allowed a legislature to correct its mistakes without paying for them (beyond the inconvenience of passing a new law), we would decrease the legislature's incentive to draft a narrowly tailored law in the first place.

Legislators who know they can cure their own mistakes by amendment without significant cost may not be as careful to avoid drafting overbroad statutes as they might otherwise be. But 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. This is so primarily because the legislatures cannot be sure that the statute, when examined by a court, will be saved by a narrowing construction rather than invalidated for overbreadth. In the latter event, there could be no convictions under that law even of those whose own conduct is unprotected by the First Amendment. Even if construed to obviate overbreadth, applying the statute to pending cases might be barred by the Due Process Clause. Thus, careless drafting cannot be considered to be cost-free based on the power of the courts to eliminate overbreadth by statutory construction.

There are also other considerations. Osborne contends that, when courts construe statutes so as to eliminate overbreadth, convictions of those found guilty of unprotected conduct covered by the statute must be reversed, and any further [p122] convictions for prior reprehensible conduct are barred. [n15] Furthermore, because he contends that overbroad laws implicating First Amendment interests are nullities, and incapable of valid application from the outset, this would mean that judicial construction could not save the statute, even as applied to subsequent conduct unprotected by the First Amendment. The overbreadth doctrine, as we have recognized, is indeed "strong medicine," Broadrick v. Oklahoma, 413 U.S. at 613, and requiring that statutes be facially invalidated whenever overbreadth is perceived would very likely invite reconsideration or redefinition of the doctrine in a way that would not serve First Amendment interests. [n16]


Having rejected Osborne's Stanley and overbreadth arguments, we now reach Osborne's final objection to his conviction: his contention that he was denied due process because it is unclear that his conviction was based on a finding that each of the elements of § 2907.323(A)(3) was present. [n17] According [p123] to the Ohio Supreme Court, in order to secure a conviction under § 2907.323(A)(3), the State must prove both scienter and that the defendant possessed material depicting a lewd exhibition or a graphic focus on genitals. The jury in this case was not instructed that it could convict Osborne only for conduct that satisfied these requirements.

The State concedes the omissions in the jury instructions, but argues that Osborne waived his right to assert this due process challenge because he failed to object when the instructions were given at his trial. The Ohio Supreme Court so held, citing Ohio law. The question before us now, therefore, is whether we are precluded from reaching Osborne's due process challenge because counsel's failure to comply with the procedural rule constitutes an independent state law ground adequate to support the result below. We have no difficulty agreeing with the State that Osborne's counsel's failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state law ground preventing us from reaching Osborne's due process contention on that point. Ohio law states that proof of scienter is required in instances, like the present one, where a criminal statute does not specify the applicable mental state. See n. 9, supra. The state procedural rule, moreover, serves the State's important interest in ensuring that counsel do their part in preventing trial courts from providing juries with erroneous instructions.

With respect to the trial court's failure to instruct on lewdness, however, we reach a different conclusion: based upon our review of the record, we believe that counsel's failure to object on this point does not prevent us from considering Osborne's constitutional claim. Osborne's trial was brief: the State called only the two arresting officers to the stand; the defense summoned only Osborne himself. Right before trial, Osborne's counsel moved to dismiss the case, contending [p124] that § 2907.323(A)(3) is unconstitutionally overbroad. Counsel stated:

I'm filing a motion to dismiss based on the fact that [the] statute is void for vagueness, overbroad . . . The statute's overbroad because . . . a person couldn't have pictures of his own grandchildren; probably couldn't even have nude photographs of himself.

Judge, if you had some nude photos of yourself when you were a child, you would probably be violating the law. . . .

* * * *

So grandparents, neighbors, or other people who happen to view the photograph are criminally liable under the statute. And on that basis, I'm going to ask the Court to dismiss the case.

Tr. 3-4. The prosecutor informed the trial judge that a number of Ohio state courts had recently rejected identical motions challenging § 2907.323(A)(3). Tr. 5-6. The court then overruled the motion. Id. at 7. Immediately thereafter, Osborne's counsel proposed various jury instructions. Ibid.

Given this sequence of events, we believe that we may reach Osborne's due process claim, because we are convinced that Osborne's attorney pressed the issue of the State's failure of proof on lewdness before the trial court and, under the circumstances, nothing would be gained by requiring Osborne's lawyer to object a second time, specifically to the jury instructions. The trial judge, in no uncertain terms, rejected counsel's argument that the statute, as written, was overbroad. The State contends that counsel should then have insisted that the court instruct the jury on lewdness because, absent a finding that this element existed, a conviction would be unconstitutional. Were we to accept this position, we would "‘force resort to an arid ritual of meaningless form,' . . . and would further no perceivable state interest."

James v. Kentucky, 466 U.S. 341, 349 (1984), quoting Staub v. City of Baxley, 355 U.S. 313, 320 (1958), and citing Henry [495 U.S. 125] v. Mississippi, 379 U.S. 443, 448-449 (1965). As Justice Holmes warned us years ago,

[w]hatever springs the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.

Davis v. Wechsler, 263 U.S. 22, 24 (1923).

Our decision here is analogous to our decision in Douglas v. Alabama, 380 U.S. 415 (1965). In that case, the Alabama Supreme Court had held that a defendant had waived his confrontation clause objection to the reading into evidence of a confession that he had given. Although not following the precise procedure required by Alabama law, [n18] the defendant had unsuccessfully objected to the prosecution's use of the confession. We followed "our consistent holdings that the adequacy of state procedural bars to the assertion of federal questions is itself a federal question," and stated that,

[i]n determining the sufficiency of objections, we have applied the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here.

Id. at 422. Concluding that "[n]o legitimate state interest would have been served by requiring repetition of a patently futile objection," we held that the Alabama procedural ruling did not preclude our consideration of the defendant's constitutional claim. Id. at 421-422. We reach a similar conclusion in this case.


To conclude, although we find Osborne's First Amendment arguments unpersuasive, we reverse his conviction and remand [p126] for a new trial in order to ensure that Osborne's conviction stemmed from a finding that the State had proved each of the elements of § 2907.323(A)(3).

So ordered.

1. Osborne contends that the subject in all of the pictures is the same boy; Osborne testified at trial that he was told that the youth was fourteen at the time that the photographs were taken. App. 16. The government maintains that three of the pictures are of one boy, and one of the pictures is of another. Three photographs depict the same boy in different positions: sitting with his legs over his head and his anus exposed; lying down with an erect penis and with an electrical object in his hand; and lying down with a plastic object which appears to be inserted in his anus. The fourth photograph depicts a nude standing boy; it is unclear whether this subject is the same boy photographed in the other pictures, because the photograph only depicts the boy's torso.

2. Osborne also unsuccessfully raised a number of other challenges that are not at issue before this Court.

3. We have since indicated that our decision in Stanley was "firmly grounded in the First Amendment." Bowers v. Hardwick, 478 U.S. 186, 195 (1986).

4. Georgia also argued that its ban on possession was a necessary complement to its ban on distribution (see discussion infra, at 110), and that the possession law benefited the public because, according to the state, exposure to obscene material might lead to deviant sexual behavior or crimes of sexual violence. 394 U.S. at 566. We found a lack of empirical evidence supporting the latter claim, and stated that "‘[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law. . . .'" Id. at 566-567 (citation omitted).

5. As the dissent notes, see post at 141, the Stanley Court cited illicit possession of defense information as an example of the type of offense for which compelling state interests might justify a ban on possession. Stanley, however, did not suggest that this crime exhausted the entire category of proscribable offenses.

6. Ala.Code § 13A-12-192 (1988); Ariz.Rev.Stat. Ann. § 13-3553 (1989); Colo.Rev.Stat. § 18-6-403 (Supp.1989); Fla.Stat. § 827.071 (1989); Ga.Code Ann. § 16-12-100 (1989); Idaho Code § 18-1507 (1987); Ill.Rev.Stat., ch. 38, 11-20.1 (1987); Kans.Stat.Ann. § 21-3516 (Supp.1989); Minn.Stat. § 617.247 (1988); Mo.Rev.Stat. § 573.037 (Supp.1989); Neb.Rev.Stat. § 28-809 (1989); Nev.Rev.Stat. § 200.730 (1987); Ohio Rev.Code Ann. §§ 2907.322 and 2907.323 (Supp.1989); Okla.Stat., Tit. 21, § 1021.2 (Supp.1989); S.D.Comp.Laws Ann. § 22-22-23, 22-22-23.1 (1988); Tex.Penal Code Ann. § 43.26 (1989 and Supp. 1989-1990); Utah Code Ann. § 76-5a-3(1)(a) (Supp.1989), Wash. Rev.Code § 9.68A.070 (1989); W.Va.Code § 61-8C-3 (1989).

7. The Attorney General's Commission on Pornography, for example, states that

Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity.

1 Attorney General's Commission on Pornography, Final Report 649 (1986) (footnotes omitted). See also D. Campagna and D. Poffenberger, Sexual Trafficking in Children 118 (1988), S. O'Brien, Child Pornography 89 (1983).

8. In the First Amendment context, we permit defendants to challenge statutes on overbreadth grounds regardless of whether the individual defendant's conduct is constitutionally protected.

The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.

Massachussets v. Oakes, 491 U.S. 576, 581 (1989).

9. The statute applies only where an individual possesses or views the depiction of a minor "who is not the person's child or ward." The State, moreover, does not impose criminal liability if either

[t]he material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance,


[t]he person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.

It is true that, despite the statutory exceptions, one might imagine circumstances in which the statute, by its terms, criminalizes constitutionally protected conduct. If, for example, a parent gave a family friend a picture of the parent's infant taken while the infant was unclothed, the statute would apply. But, given the broad statutory exceptions and the prevalence of child pornography, it is far from clear that the instances where the statute applies to constitutionally protected conduct are significant enough to warrant a finding that the statute is overbroad. Cf. Oakes, supra, at 589-590 (Opinion of SCALIA, J., joined by BLACKMUN, J., concurring judgment in part and dissenting in part).

Nor do we find very persuasive Osborne's contention that the statute is unconstitutionally overbroad because it applies in instances where viewers or possessors lack scienter. Although § 2907.323(A)(3) does not specify a mental state, Ohio law provides that recklessness is the appropriate mens rea where a statute "neither specifies culpability nor plainly indicates a purpose to impose strict liability." Ohio Rev.Stat. Ann. § 2901.21(B) (1987).

We also do not find any merit to Osborne's claim that § 2907.323(A)(3) is unconstitutionally vague because it does not define the term "minor." Under Ohio law, a minor is anyone under eighteen years of age. Ohio Rev.Code Ann. § 3109.01 (1989).

10. The Ohio Court reached this conclusion because,

when the "proper purposes" exceptions set forth in R.C. 2907.323(A)(3)(a) and (b) are considered, the scope of the prohibited conduct narrows significantly. The clear purpose of these exceptions . . . is to sanction the possession or viewing of material depicting nude minors where that conduct is morally innocent. Thus, the only conduct prohibited by the statute is conduct which is not morally innocent, i.e., the possession or viewing of the described material for prurient purposes. So construed, the statute's proscription is not so broad as to outlaw all depictions of minors in a state of nudity, but rather only those depictions which constitute child pornography.

37 Ohio St.3d at 251-252, 525 N.E.2d at 1367-1368 (emphasis in original).

11. The statute upheld against an overbreadth challenge in Ferber was, moreover, arguably less narrowly tailored than the statute challenged in this case, because, unlike § 2907.323(A)(3), the New York law did not provide a broad range of exceptions to the general prohibition on lewd exhibition of the genitals. Despite this lack of exceptions, we upheld the New York law, reasoning that

[h]ow often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of [the statute] in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach.

458 U.S. at 773.

Justice BRENNAN distinguishes the Ohio statute, as construed, from the statute upheld in Ferber on the ground that the Ohio statute proscribes "‘lewd exhibitions of nudity,' rather than ‘lewd exhibitions of the genitals.'" See post at 129 (emphasis in original). He notes that Ohio defines nudity to include depictions of pubic areas, buttocks, the female breast, and covered male genitals "in a discernibly turgid state." Post at 130. We do not agree that this distinction between body areas and specific body parts is constitutionally significant: the crucial question is whether the depiction is lewd, not whether the depiction happens to focus on the genitals or the buttocks. In any event, however, Osborne would not be entitled to relief. The context of the opinion indicates that the Ohio Supreme Court believed that "the term ‘nudity,' as used in R.C. 2907.323(A)(3), refers to a lewd exhibition of the genitals." State v. Young, 37 Ohio St.3d 249, 258, 525 N.E.2d 1363, 1373 (1988).

We do not concede, as Justice BRENNAN suggests, see post at 131, n. 5, that the statute, as construed, might proscribe a family friend's possession of an innocuous picture of an unclothed infant. We acknowledge (see n. 9, supra, ) that the statute, as written, might reach such conduct, but, as construed, the statute would surely not apply, because the photograph would not involve a "lewd exhibition or graphic focus on the genitals" of the child.

12. This principle, of course, accords with the rationale underlying overbreadth challenges. We normally do not allow a defendant to challenge a law as it is applied to others. In the First Amendment context, however, we have said that,

[b]ecause of the sensitive nature of constitutionally protected expression, we have not required that all those subject to overbroad regulations risk prosecution to test their rights. For free expression -- of transcendent value to all society, and not merely to those exercising their rights -- might be the loser.

Dombrowski, 380 U.S. at 486. But once a statute is authoritatively construed, there is no longer any danger that protected speech will be deterred, and therefore no longer any reason to entertain the defendant's challenge to the statute on its face.

13. In Shuttlesworth, we also overturned the defendant's conviction for violating another part of the same Alabama statute because that provision had been interpreted as criminalizing an individual's failure to follow a policeman's directions when the policeman was directing traffic, and the crime alleged in Shuttlesworth had nothing to do with motor traffic. 382 U.S. at 93-95.

14. Buckley v. Valeo, 424 U.S. 1, 76-80 (1976), is another landmark case where a law was construed to avoid potential overbreadth problems, and left in place. Section 304(e) of the Federal Election Campaign Act, 2 U.S.C. § 434(e) (1976 ed.), imposes certain reporting requirements on "[e]very person . . . who makes contributions or independent expenditures" exceeding $100 "other than by contribution to a political committee or candidate." We stated that,

[t]o insure that the reach of § 434(e) is not impermissibly broad, we construe "expenditure" for purposes of that section . . . to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.

The section was upheld as construed. 424 U.S. at 80 (footnote omitted).

15. Under Osborne's submission, even where the construction eliminating overbreadth occurs in a civil case, the statute could not be applied to conduct occurring prior to the decision; for, although plainly within reach of the terms of the statute and plainly not otherwise protected by the First Amendment, until the statute was narrowed to comply with the Amendment, the conduct was not illegal.

16. In terms of applying a ruling to pending cases, we see no difference of constitutional import between a court's affirming a conviction after construing a statute to avoid facial invalidation on the ground of overbreadth and affirming a conviction after rejecting a claim that the conduct at issue is not within the terms of the statute. In both situations, the Due Process Clause would require fair warning to the defendant that the statutory proscription, as construed, covers his conduct. But even with the due process limitation, courts repeatedly affirm convictions after rejecting nonfrivolous claims that the conduct at issue is not forbidden by the terms of the statute. As argued earlier, there is no doubt whatsoever that Osborne's conduct is proscribed by the terms of the child pornography statute involved here.


[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In Re Winship, 397 U.S. 358, 364 (1970).

18. The Alabama court had stated:

"There must be a ruling sought and acted on before the trial judge can be put in error. Here there was no ruling asked or invoked as to the questions embracing the alleged confession."

380 U.S. at 421 (citation omitted).