|Osborne v. Ohio
37 Ohio St.3d 249, 525 N.E.2d 1363, reversed and remanded.
[ White ]
[ Blackmun ]
[ Brennan ]
Osborne v. Ohio
APPEAL FROM THE SUPREME COURT OF OHIO
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 (1969), prevents the State from criminalizing appellant's possession of the photographs at issue in this case. I therefore respectfully dissent.
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 [p127] below the top of the nipple, or of covered male genitals in a discernibly turgid state.
Ohio Rev. Code Ann. § 2907.01(H) (Supp.1989). In short, §§ 2907.323 and 2907.01(H) use simple nudity, without more, as a way of defining child pornography. [n1] 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 (1981) (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224 (1990) (plurality opinion); id. at 238, n. 1 (BRENNAN, J., concurring in judgment); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-558 (1975); California v. LaRue, 409 U.S. 109, 118 (1972). In Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975), for example, we invalidated a statute 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.
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.1
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 (1982), [n3] [p129] 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 (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 (quoting § 263.00(3)). Although we acknowledged that "nudity, without more[,] is protected expression," id. at 765, 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; see also id. at 776 (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. [n4] [p130] 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 [p131] 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. 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, 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. [n5] Furthermore, [p132] the Ohio law forbids not only depictions of nudityper 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, [n6] 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 [p133] 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." [n7] 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. [n8] In fact, the word [p134] "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. [p135] Thus, when the Ohio Supreme Court grafted the "lewd exhibition" test onto the definition of nudity, it was venturing into uncharted territory. [n9]
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. [n10] At [p136] 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." Moryan v. Detroit, 389 F.Supp. 922, 930 (ED Mich. 1975). [n11] 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 [p137] 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 (1989); Pope v. Illinois, 481 U.S. 497, 500-501 (1987); Pinkus v. United States, 436 U.S. 293, 302-303 (1978); Smith v. United States, 431 U.S. 291, 300, n. 6 (1977); Miller v. California, 413 U.S. 15, 24 (1973); Mistakin v. New York, 383 U.S. 502, 508 (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 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)); see also Houston v. Hill, 482 U.S. 451, 465, and n. 15 (1987). [n12] Given the important First Amendment interests [p138] at issue, the vague, broad sweep of the "lewd exhibition" language means that it cannot cure § 2907.323(A)(3)'s overbreadth.2
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, [n13] 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, [p139] even as construed authoritatively by the Ohio Supreme Court, is impermissibly overbroad, I would hold that appellant cannot be retried under it. [n14]
Even if the statute was not overbroad, our decision in Stanley v. Georgia, 394 U.S. 557 (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. 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 (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 [p140] not dispositive of its power to penalize possession. [n15] 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. 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. 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 [p141] the Constitution.
United States v. Reidel, 402 U.S. 351, 356 (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. [n16] 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 [p142] 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, [n17] I would find the Court's [p143] 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.
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. [n18] While I share the majority's [p144] 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 [p145] 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. [n19] "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 (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 [495 U.S. 146] ante at 123-124. I agree with the Court's conclusion that we may reach the merits of appellant's claim on this point. [n20]
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 [p147] 122-123. 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). 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. [p148] 307, 313 (1985) (quoting In re Winship, 397 U.S. 358, 363 (1970)), and is cognizable on appeal as plain error. Cf. Carella v. California, 491 U.S. 263, 268-269 (1989) (SCALIA, J., concurring in judgment); Rose v. Clark, 478 U.S. 570, 580, n. 8 (1986); Connecticut v. Johnson, 460 U.S. 73, 85-86 (1983) (plurality opinion); Jackson v. Virginia, 443 U.S. 307, 320, n. 14 (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 (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.
1. Other provisions of Ohio law relating to child pornography are not phrased in terms of "nudity." For example, Ohio Rev.Code Ann. § 2907.321 (Supp.1989) prohibits the knowing creation, sale, distribution, or possession of "obscenity involving a minor." Ohio Rev.Code Ann. § 2907.322 (Supp.1989) prohibits the knowing creation, sale, distribution, or possession of materials depicting a minor engaging in "sexual activity" (defined as "sexual conduct or sexual contact," see §§ 2907.01(A), (B), (C)), masturbation, or bestiality. The documented harm from child pornography arises chiefly from the type of obscene materials that would be punished under these provisions, rather than from the depictions of mere "nudity" that are criminalized in § 2907.323. See New York v. Ferber, 458 U.S. 747, 779, n. 4 (1982) (STEVENS, J., concurring in judgment).
2. The Court hints that § 2907.323's exemptions and "proper purposes" provisions might save it from being overbroad. See ante at 112. I disagree. The enumerated "proper purposes" (e.g., a "bona fide artistic, medical, scientific, educational . . . or other proper purpose") are simultaneously too vague and too narrow. What is an acceptable "artistic" purpose? Would erotic art along the lines of Robert Mapplethorpe's qualify? What is a valid "scientific" or "educational" purpose? What about sex manuals? See, e.g., Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (ND Tex.1985), aff'd, 799 F.2d 1000 (CA5 1986). What is a permissible "other proper purpose"? What about photos taken for one purpose and recirculated for other, more prurient purposes? The "proper purposes" standard appears to create problems analogous to those this Court has encountered in describing the "redeeming social importance" of obscenity. See Pope v. Illinois, 481 U.S. 497, 500-501 (1987); id. at 513-519 (STEVENS, J., dissenting); Smith v. United States, 431 U.S. 291, 319-321 (1977) (STEVENS, J., dissenting); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 84-85 (1973) (BRENNAN, J., dissenting); Miller v. California, 413 U.S. 15, 24 (1973), Memoirs v. Attorney General of Massachusetts, 383 U.S. 413, 418 (1966) (plurality opinion); Roth v. United States, 354 U.S. 476, 484-485 (1957).
At the same time, however, Ohio's list of "proper purposes" is too limited; it excludes such obviously permissible uses as the commercial distribution of fashion photographs or the simple exchange of pictures among family and friends. Thus, a neighbor or grandparent who receives a photograph of an unclothed toddler might be subject to criminal sanctions.
3. Although the phrase "lewd exhibition of the genitals" was offered as an example of a permissible regulation in Miller v. California, supra, 413 U.S. at 25, it was mentioned in the Court's treatment of a vagueness question. Even then, the phrase was prefaced with the words "[p]atently offensive representations or descriptions," ibid., and included in a list with other types of sexual conduct that served to limit its scope.
4. The Court maintains that
[t]he 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).
Ante at 115, n. 11. The passage cited (and quoted in part) by the Court, however, is a description of appellant's objections at trial and his argument on appeal, not a precise formulation by the Ohio Supreme Court of the "lewd exhibition" test. Indeed, only two sentences after the quotation cited by the majority, the Ohio court referred to "lewdness [a]s an element of nudity under R.C. 2907.323(A)(3)." 37 Ohio St.3d at 258, 525 N.E.2d at 1373 (emphasis added). Earlier in its opinion, the Ohio Supreme Court more carefully articulated its construction of the statute, and stated that § 2907.323(A)(3) criminalizes depictions of nudity "where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals." 37 Ohio St.3d at 252, 525 N.E.2d at 1368. It is on this portion of the opinion that I rely.
The Ohio Supreme Court did not say, "[W]here such nudity constitutes a lewd exhibition of or involves a graphic focus on the genitals." The noun "exhibition" does not take as a modifier the preposition "on," and the court's repeated reference to the "prohibited state of nudity" as "a lewd exhibition or a graphic focus on the genitals," 37 Ohio St.3d at 251, 525 N.E.2d at 1367, leaves no doubt that its choice of words was deliberate. The Ohio court clearly meant the "lewd exhibition" standard to pertain only to nudity, and not to displays of the genitals. See also ibid. (referring to "morally innocent states of nudity as well as lewd exhibitions").
But were the Court today correct that the Ohio Supreme Court intended to create a "‘lewd exhibition' of the genitals" test, I would hardly be reassured. Indeed, such a confused approach by the Ohio Supreme Court, referring in one part of its opinion to "lewd exhibitions of nudity" and in another to "lewd exhibitions of the genitals," would create a great deal of uncertainty regarding the scope of § 2907.323(A)(3), and likely would render that statute void for vagueness. We of course are powerless to clarify or elaborate on the interpretation of Ohio law provided by the state court. See Freedman v. Maryland, 380 U.S. 51, 60-61 (1965).
5. The majority concedes that,
[i]f, 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.
Ante at 113, n. 9. To provide another disturbing illustration: A well-known commercial advertisement for a suntan lotion shows a dog pulling down the bottom half of a young girl's bikini, revealing a stark contrast between her suntanned back and pale buttocks. That this advertisement might be illegal in Ohio is an absurd, yet altogether too conceivable, conclusion under the language of the statute.
Many of the world's great artists -- Degas, Renoir, Donatello, to name a few -- have worked from models under 18 years of age, and many acclaimed photographs and films have included nude or partially clad minors.
Massachusetts v. Oakes, 491 U.S. 576, 593 (1989) (BRENNAN, J., dissenting). In addition, there is an
abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots.
Id. at 598 (BRENNAN, J., dissenting); see also State v. Schmakel, No. L-88-300, 1989 WL 119926 (Ohio Ct.App., Oct. 13, 1989), pp. 10-11 ("a parent photographing his naked toddler on a bear rug would be threatened with a prison term . . . even though parents ostensibly have the same interests in taking those pictures as they do in keeping a journal or gloating about their children's accomplishments"). None of these examples involves "sexual conduct," Ferber, 458 U.S. at 765, yet all might be unlawful under the Ohio statute.
6. Cf. Steffens v. State, 343 So.2d 90, 91 (Fla.App. 1977) (invalidating as impermissibly vague ordinance that prohibited "female waitresses, entertainers or other employees of a public business" from appearing with their breasts "thinly covered by mesh, transparent net or lawn skin-tight materials which are flesh-colored and worn skin-tight, so as to appear uncovered, "on the ground that, "[i]n view of the scanty female apparel which is now socially acceptable in public, particularly on beaches, the description of the type of clothing forbidden by this ordinance is extremely unclear").
7. Other courts have found it necessary to equate "lewd" with "obscene" in order to avoid overbreadth and vagueness problems. See, e.g., United States v. 12,200-Ft. Reels of Super 8 mm Film, 413 U.S. 123, 130, n. 7 (1973); Donnenberg v. State, 1 Md.App. 591, 597, 232 A.2d 264, 267 (1967) ("lewd" and "indecent" equivalent to "obscene"; "[o]therwise the words would be too vague to constitute a permissible standard in a criminal statute"); State ex rel. Cahalan v. Diversified Theatrical Corp., 59 Mich.App. 223, 232-233, 229 N.W.2d 389, 393 (1975); Seattle v. Marshall, 83 Wash.2d 665, 672, 521 P.2d 693, 697 (1974); State v. Voshart, 39 Wis.2d 419, 429-431, 159 N.W.2d 1, 6-7 (1968). But the Ohio Supreme Court specifically rejected this path.
In my judgment, even equating "lewd" with "obscene" would not adequately clarify matters, because
the concept of "obscenity" cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms.
Paris Adult Theatre I v. Slaton, 413 U.S. at 103 (BRENNAN, J., dissenting); see also Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 133-134 (1989) (BRENNAN, J., concurring in part and dissenting in part); Pope v. Illinois, 481 U.S. 497, 507 (1987) (BRENNAN, J., dissenting); id. at 513-518 (STEVENS, J., dissenting).
8. Revised Code § 2905.26(B), which was repealed in 1974, defined "lewdness" somewhat unhelpfully as "any indecent or obscene act." As it now reads, the Sex Offenses chapter of the Ohio Revised Code is remarkably devoid of any use of the term "lewd." The crime of "importuning," for example, is defined as the solicitation to engage in "sexual activity" or "sexual conduct." Ohio Rev.Code Ann. § 2907.07 (1975). "Public indecency" comprises "expos[ing one's] private parts," "engag[ing] in masturbation," "engag[ing] in sexual conduct," or "engag[ing] in conduct which to an ordinary observer would appear to be sexual conduct or masturbation." § 2907.09. "Prostitution" is described as engaging in "sexual activity for hire." Ohio Rev.Code Ann. §§ 2907.21-2907.26 (1975 and Supp.1989).
Currently, several sections of the Ohio Revised Code outside the Sex Offenses chapter contain the term "lewd." See Ohio Rev.Code Ann. § 715.52 (1976) ("Any municipal corporation may . . . [p]rovide for the punishment of all lewd and lascivious behavior in the streets and other public places"); Ohio Rev.Code Ann. § 3767.01(C) (1988) (defining public "nuisance" as "that which is defined and declared by statutes to be such and . . . any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films or plate negatives [and so on, are exhibited]"); Ohio Rev.Code Ann. § 4715.30(A) (Supp.1989) (providing that "[t]he holder of a certificate or license issued under this chapter is subject to disciplinary action by the state dental board for . . . [e]ngaging in lewd or immoral conduct in connection with the provision of dental services"); Ohio Rev. Code Ann. § 4931.31 (1977) ("No person shall, while communicating with any other person over a telephone, . . . use or address to such other person any words or language of a lewd, lascivious, or indecent character, nature, or connotation for the sole purpose of annoying such other person").
The Ohio Supreme Court did not refer to any of these provisions in articulating its "lewd exhibition" standard, and they provide little guidance in deciphering the "lewd exhibition of nudity" test. Indeed, although the Ohio public nuisance statute, § 3767.01(C), contains the phrase "lewdness, assignation, or prostitution," it has been interpreted to refer only to conduct or behavior, and not to photographs and other printed materials. See Ohio v. Pizza, No. L-88045, 18, 1989 WL 20263 (Ohio Ct.App., Mar. 10, 1989), p. 18. Thus, Ohio has followed those States that have determined that "the term ‘lewdness' does not apply to persons who sell pornography." Chicago v. Geraci, 30 Ill.App.3d 699, 704, 332 N.E.2d 487, 492 (1975) (emphasis added); see also Chicago v. Festival Theatre Corp., 91 Ill.2d 295, 302, 63 Ill.Dec. 421, 423424, 438 N.E.2d 159, 161-162 (1982) (noting that various courts have held that "‘lewdness, assignation, or prostitution" abatement statutes are not applicable to obscene films or books).
9. Indeed, in other contexts, the Ohio Supreme Court has recognized the difficulty of defining the term "lewd." See, e.g., Columbus v. Rogers, 41 Ohio St.2d 161, 163-165, 324 N.E.2d 563, 565-566 (1975) (holding void for vagueness city ordinance providing that "‘[n]o person shall appear on any public street or other public place in a state of nudity or in a dress not belonging to his or her sex, or in an indecent or lewd dress'"); Columbus v. Schwarzwalder, 39 Ohio St.2d 61, 62-63, 313 N.E.2d 798, 800 (1974) (per curiam) (reversing, on grounds of overbreadth, convictions under disorderly conduct ordinance that prohibited "‘disturb[ing] the good order and quiet of the city'" and "‘otherwise violat[ing] the public peace by indecent and disorderly conduct or by lewd or lascivious behavior'"); see also South Euclid v. Richardson, Nos. 54247, 54248, slip op., 1988 WL 88346 (Ohio Ct.App., Aug. 18, 1988), pp. 1-2 (invalidating as vague and overbroad municipal ordinance stating that "‘no person, organization, club or association shall own, operate, maintain or manage a brothel or solicit, invite or entice another to patronize a brothel or to engage in acts of lewdness or sexual conduct,'" and that defined "‘lewdness'" as "‘sexual conduct or relations of such gross indecency and so notorious as to corrupt community morals'").
10. Historically, prohibitions on "lewd" acts grew out of
the archaic vagrancy statutes which were designedly drafted to grant police and prosecutors a vague and standardless discretion.
Pryor v. Municipal Court for Los Angeles, 25 Cal.3d 238, 248, 158 Cal.Rptr. 330, 335, 599 P.2d 636, 641 (1979). We held such vagrancy laws unconstitutionally vague in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Cf. Ohio Rev.Code § 715.55 (1976) ("Any municipal corporation may provide for: (A) The punishment of persons disturbing the good order and quiet of the municipal corporation by clamors and noises in the night season, by intoxication, drunkenness, fighting, committing assault, assault and battery, using obscene or profane language in the streets and other public places to the annoyance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd or lascivious behavior. (B) The punishment of any vagrant, common street beggar, common prostitute, habitual disturber of the peace, known pickpocket, gambler, burglar, thief, watch stuffer, ball game player, a person who practices any trick, game, or device with intent to swindle, a person who abuses his family, and any suspicious person who cannot give a reasonable account of himself") (emphasis added).
11. Virtually any act running afoul of "conventional" morality can be and has been sanctioned under "lewdness" laws. See, e.g., Jelly v. Dabney, 581 P.2d 622, 626 (Wyo.1978) (describing, as punishable under "lewdness" prohibition, crime of "illicit cohabitation," i.e., a "dwelling or living together by a man and woman, not legally married to each other, in the manner of husband and wife, and indulgence in acts of sexual intercourse") (quotation omitted); Egal v. State, 469 So.2d 196, 198 (Fla.App.1985) ("‘[I]f, forty years ago, either a man or a woman had donned the apparel popular on our beaches today, . . . such person would probably have been . . . branded as a lewd, lascivious, and indecent person'") (quoting State ex rel. Swanboro v. Mayo, 155 Fla. 330, 332, 19 So.2d 883, 884 (1944)).
12. The danger of discriminatory enforcement assumes particular importance of the context of the instant case, which involves child pornography with male homosexual overtones. Sadly, evidence indicates that the overwhelming majority of arrests for violations of "lewdness" laws involve male homosexuals. See Pryor, supra, 25 Cal.3d at 252, n. 8, 158 Cal.Rptr. at 338, n. 8, 599 P.2d at 644, n. 8. Cf. Houston v. Hill, 482 U.S. 451 (1987) (prosecution of male homosexual for interfering with a police officer in the performance of his duties); Developments in the Law -- Sexual Orientation and the Law, 102 Harv.L. Rev. 1509, 1537-1538, 1542 (1989).
Such uneven application of the law is the natural consequence of a statute which, as judicially construed, measure[s] the criminality of conduct by community or even individual notions of what is distasteful behavior.
Pryor, supra, 25 Cal.3d at 252, 158 Cal.Rptr. at 338, 599 P.2d at 644. The "lewd exhibition" standard
"furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.'"
Kolender v. Lawson, 461 U.S. at 360 (quoting Papachristou, 405 U.S. at 170, in turn quoting Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)).
13. Since § 2907.323(A)(3) makes it a crime to "view" as well as to possess depictions of nudity, visitors to an art gallery might find themselves in violation of the law.
14. The scope of § 2907.323(A)(3) is restricted to depictions of "a minor who is not the person's child or ward." This does not cure the overbreadth problem, because many constitutionally protected photographs outlawed by the statute, such as commercial advertisements and works of art, circulate outside of the subject's immediate family. See also ante at 124 ("‘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'") (quoting Tr. 3-4).
15. The distinction drawn in Stanley is not an anomaly in the law; to the contrary, we have often protected expression valued by listeners, whether or not the source of the communication was fully entitled to the safeguards of the First Amendment. See, e.g., Pacific Cas & Electric Co. v. Public Utilities Comm'n of California, 475 U.S. 1, 8 (1986) (plurality opinion); Consolidated Edison Co. of New York v. Public Service Comm'n of New York, 447 U.S. 530, 533-534, and n. 1 (1980); First National Bank of Boston v. Bellotti, 435 U.S. 765, 777, and n. 13 (1978); Lamont v. Postmaster General, 381 U.S. 301, 307-308 (1965) (BRENNAN, J., concurring). Just as the right of a listener to receive information does not rest on the right of the producer to disseminate it, so the power to ban the production and distribution of child pornography does not imply a concomitant authority to proscribe mere possession.
16. Although we held in Stanley v. Georgia, 394 U.S. 557 (1969), that "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime," id. at 568, we acknowledged that "compelling reasons may exist for overriding the right of the individual to possess" other types of "printed, filmed, or recorded materials." Id. at 568, n. 11. The majority's reference to this language as support for its decision today, see ante at 110, ignores the fact that footnote 11 in Stanley cited only to 18 U.S.C. § 793(d), which criminalizes possession of defense information harmful to U.S. national security. To equate child pornography with state secrets is to read the narrow exception carved in footnote 11 of Stanley as swallowing the general rule that the case established. See State v. Meadows, No. C-850091, 1985 WL 4501 (Ohio Ct.App., Dec. 18, 1985) (Doan, J., concurring) ("[t]he reservation [in footnote 11 of Stanley] applies to traitorous or seditious materials, not to child pornography"), rev'd, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986), cert. denied, 480 U.S. 936 (1987); see also Meadows, 28 Ohio St.3d at 356-357, 503 N.E.2d at 716 (Brown, J. concurring). Although our decisions even in the First Amendment area have taken special note of the paramount importance of national security interests, see, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931), we nonetheless have required a strong showing of imminent danger before permitting First Amendment freedoms to be sacrificed. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 726-727 (1971) (BRENNAN, J., concurring).
17. That 19 States have prohibited possession of child pornography hardly proves that such an approach is integral to effective enforcement of production and distribution laws. A restriction on speech cannot be justified by such self-referential reasoning. In fact, the difficulty of enforcing possession laws -- for example, the requirements of probable cause and a warrant before a search may be undertaken -- means that penalties for possession are dubious complements to curbs on production, sale, and distribution. See Note, Private Possession of Child Pornography: The Tensions Between Stanley v. Georgia and New York v. Ferber, 29 Wm. & Mary L.Rev. 187, 212 (1987) ("Statutory prohibition of the private possession of child pornography is an inefficient and ineffective means of preventing the serious problem of child sexual abuse").
The federal experience illustrates that possession laws are not an essential element of a successful enforcement strategy. In the Protection of Children Against Sexual Exploitation Act of 1977, P.L. 95-225, 92 Stat. 7, Congress prohibited the production, distribution, and sale of material depicting sexually explicit conduct by minors. See 18 U.S.C. §§ 2251-2253 (1982 ed.). Congress also criminalized the mailing, receipt, or trafficking in interstate or foreign commerce of such material for the purpose of sale or distribution for sale. See 18 U.S.C. § 2252(a) (1982 ed.). But Congress did not criminalize mere possession. In the Child Protection Act of 1984, P.L. 98-292, 98 Stat. 204, Congress enacted a broad revision of the 1977 law removing the requirement that trafficking, receipt, and mailing be for the purposes of sale or distribution for sale. See 18 U.S.C. § 2252(a). Further, the 1984 Act eliminated a requirement that material be "obscene" before its production, distribution, sale, mailing, trafficking, and receipt could be found criminal, see § 2252(a); raised the age limit of protection from 16 to 18 years of age, see § 2256(1); and added stiffer penalties, see § 2252(b), criminal and civil forfeiture provisions, see §§ 2253, 2254, and a civil remedy for personal injuries. See § 2255. Even in the 1984 amendments, Congress did not find it necessary to ban simple possession. Nevertheless, the Attorney General's Commission on Pornography determined that
the 1977 Act effectively halted the bulk of the commercial child pornography industry, while the 1984 revisions have enabled federal officials to move against the noncommercial, clandestine mutation of that industry.
1 U.S. Dept. of Justice, Attorney General's Commission on Pornography, Final Report 607 (1986).
18. The Court briefly identifies two other interests that it contends justify Ohio's law. First, the majority describes a state interest in destroying the "permanen[t] record" of the victim's abuse. Ante at 111. I do not believe that the law is narrowly tailored to this end, for there is no requirement that the State show that the child was abused in the production of the materials, or even that the child knew that a photograph was taken. Even if the State could recover all copies of the offensive picture, which seems highly unlikely, I do not see how a candid shot taken without the minor's knowledge can "haun[t]" him or her in the years to come, ibid., when there is no indication that the child is even aware of its existence. And if the law's purpose is preventing sexual abuse of children, it is under-inclusive to the extent that it does not prevent parents from photographing their children in a state of nudity, see, e.g., Massachusetts v. Oakes, 491 U.S. 576 (1989), or giving others written permission to do so. See, e.g., Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (ND Tex. 1985). The only restriction on parents is the nebulous "proper purposes" provision, which is really no restriction at all. See n. 2, supra. More fundamentally, even if the State could presume that minors are legally incompetent to consent to sexually explicit photographs, and therefore that all such photographs could be outlawed, it does not follow that the State can prohibit possession of such pictures in addition to their production. In Ferber, the Court was careful to limit its discussion to the "distribution" and "circulation" of photographs taken without a minor's consent. See 458 U.S. at 759 and n. 10; cf. Butterworth v. Smith, 494 U.S. 624, 635-636 (1990); The Florida Star v. B.J.F., 491 U.S. 524, 532-533 (1989); Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975). By analogy, Stanley assuredly protects the private possession of obscene adult pornography, even though an argument could be made that "production of adult pornography can be as harmful to adult actors as the production of child pornography is to child actors." Note, 29 Wm. & Mary L.Rev., supra, at 204, n. 144; see also 1 Attorney General's Report, supra, n. 16, at 839-900; Pollard, Regulating Violent Pornography, 43 Vand.L.Rev. 125, 133-134 (1990).
Second, the Court maintains that possession of child pornography may be prohibited "because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity." Ante at 111 (citing, in a footnote, the Attorney General's Commission on Pornography). The Attorney General's Commission, however, determined that pedophiles are likely to use adult as well as child pornography to lower the inhibitions of a child victim. See Attorney General's Report, supra, n. 16, at 686; see also Brief for Covenant House et al., as Amici Curiae 8, n. 9 (characterizing the Court's argument on this point as "factual speculation"). Finally, Ohio's solution -- prohibiting private possession -- ignores fundamental principles of our First Amendment jurisprudence.
Assuming obscene material could be proved to create a . . . danger of illegal behavior, it would not follow that the expression should be suppressed. Rather, the basic principles of a system of freedom of expression would require that society deal directly with the . . . action and leave the expression alone.
T. Emerson The System of Freedom of Expression 494 (1970). See also Paris Adult Theatre I v. Slaton, 413 U.S. at 108-110 (BRENNAN, J. dissenting). Thus, while acts of sexual abuse themselves may be outlawed, the private possession of photographs, magazines, and other materials may not.
19. The notion that possession of pornography may be penalized in order to facilitate a prohibition on its production, whatever the rights of possessors, is not unlike a proposal that newspaper subscribers be held criminally liable for receiving the newspaper if they are aware of the publisher's violations of child labor laws. Cf. L. Tribe, American Constitutional Law 915 (2d ed. 1988). In both cases, sanctions against possession might increase the effectiveness of concededly permissible regulations on the production process. But. although the need to protect children from exploitation may be acute, it cannot override the right to receive the newspaper or to possess sexually explicit materials in the privacy of the home, especially when less restrictive alternatives exist to further the state interests asserted.
20. The Court's opinion should not be taken to mean that appellant's due process claim with respect to the "lewd exhibition" and "graphic focus" elements would be procedurally barred now had he failed to object at trial. If appellant's due process contention were nothing more than a complaint concerning the statute's overbreadth, the suggestion that he would be barred from raising it now if he failed to object at trial might be plausible. But that is not appellant's argument. Rather, he maintains that his due process rights were violated because the Ohio Supreme Court affirmed his conviction after adding the elements of "lewd exhibition" and "graphic focus" on appeal, despite the fact that appellant had had no reason to design a defense strategy or introduce evidence with these tests in mind. The jury, moreover, might have convicted appellant purely on the basis of the "nudity" definition, without deciding whether the materials depicted a "lewd exhibition of nudity" or involved a "graphic focus" on the genitals. Thus, appellant's due process claim is separate from his overbreadth challenge, see Shuttlesworth v. Birmingham, 382 U.S. 87, 92 (1965), as even the Court appears to recognize at some places in its opinion. See ante at 121 ("Even if construed to obviate overbreadth, applying the statute to pending cases might be barred by the Due Process Clause"). The due process violation in this case was not complete until the Ohio Supreme Court affirmed appellant's conviction after reinterpreting the statute. Requiring defendants to object at trial to an error that does not appear until the appellate stage would advance no legitimate state interest regarding finality or compliance with state procedures.