Although the Supreme Court decision in Osborne v. Ohio, 495 U.S. 103 (1990), reversed and remanded the conviction of Clarence Osborne for the private possession of “child pornography,” it established that the First Amendment right to free speech did not forbid states from enforcing laws against private possession of such material.

While executing a valid search warrant at Osborne’s home, the police found four photographs of a boy, or boys, in nude, sexually provocative poses. Osborne, a 62-year-old man, was charged with violating an Ohio criminal statute that said, in part, that no one may “. . . [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.” Osborne had not taken the pictures, and there was no evidence he was a pedophile or that he had in any way distributed the material to others. Yet, he was convicted and sentenced to six months in jail.

Osborne asked the Supreme Court to review his case, arguing that prohibiting the possession of pornography was a violation of the First Amendment right to free press and expression. The Court agreed to hear the case and held that laws prohibiting the private possession of child pornography were not in violation of the First Amendment. Nonetheless, the Court reversed and remanded the case, finding that it was unclear whether the state had proved all elements of the offense.

More than 30 years earlier, the Supreme Court had unequivocally removed obscenity from First Amendment protection in Roth v. United States (1957). Since then, with varying degrees of success, the Court has attempted to define what obscenity is, and therefore what is excluded, but it has never wavered from its fundamental premise. In 1969 the Court made one important concession, ruling in Stanley v. Georgia that the state could not prosecute the private possession of pornography. This decision balanced the interests of the state in outlawing private possession of pornography and the individual’s freedom of thought. In that case the state’s interest was not found compelling enough to invade the individual’s privacy.

Then in New York v. Ferber (1982), the Court addressed another question entirely — that is, whether sexually explicit materials that involved minors, but were not obscene under the three-part standard for obscenity established in the Miller v. California (1973) standard (which asked “if ‘(a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; [if] (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [if] (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value’), were protected by the First Amendment. In answering no, the Court said that the “compelling state interest” in protecting children removed any First Amendment protection the mate- rial involving minors might have. Ferber created the child pornography exception in First Amendment jurisprudence.

Ohio and other states subsequently passed statutes outlawing “child pornography.” These were often very broad statutes that included many items, such as depictions of mere nudity, that would not have been legally obscene under existing statutes. The state claimed that it needed the statutes to pursue pedophiles, who often used pornography to recruit and/or exploit victims.

In defending Osborne in his appeal before the Supreme Court, his attorneys relied, unsuccessfully, on the Stanley decision, saying that the mere personal possession of any pornography is protected by the First Amendment. The court disagreed, reasoning that Stanley was a narrow exception. It declared that the state’s interest in the prevention of child abuse far outweighed Clarence Osborne’s right to view the images.

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