Osborne v. Ohio

495 U.S. 103, 110 S. Ct. 1691 (1990)



Ohio may constitutionally proscribe the possession and viewing of child pornography if the statute is read as only applying to depictions of nudity involving a lewd exhibition or graphic focus.


After Ohio police found photographs in petitioner Osborne's home, each of which depicted a nude male adolescent posed in a sexually explicit position, he was convicted of violating  Ohio Rev. Code Ann. § 2907.323(A)(3), a state statute prohibiting any person from possessing or viewing any material or performance showing a minor who is not his child or ward in a state of nudity, unless the material or performance was presented for a bona fide purpose by or to a person having a proper interest therein, or the possessor knew that the minor's parents or guardian has consented in writing to such photographing or use of the minor. An intermediate appellate court and the State Supreme Court affirmed the conviction. The latter court rejected Osborne's contention that the First Amendment prohibited the States from proscribing the private possession of child pornography. The court also found that the statute was not unconstitutionally overbroad, since, in light of its specific exceptions, it must be read as only applying to depictions of nudity involving a lewd exhibition or graphic focus on the minor's genitals, and since scienter was an essential element of the statute, it held that the state's failure to prove lewd exhibition and scienter was not plain error. Consequently, petitioner Osborne appealed the judgment.


Taking into consideration the circumstances of the case, did the state supreme court err in upholding the conviction of petitioner Osborne? 




The U.S. Supreme Court reversed the decision of the state supreme court. According to the Court, although the statute was constitutional because of the state's compelling interest in safeguarding minors and the court could narrow the statute to avoid overbreadth, the Court held the U.S. Const. amend. XIV, Due Process Clause required the state to prove each element of the statute to sustain a conviction.

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