OSBORNE v. OHIO

Legal Principle at Issue

Whether an Ohio statute prohibiting the private possession or viewing of child pornography is overbroad and violates the First Amendment's free speech guarantees.

Action

Reversed and remanded. Petitioning party did not receive a favorable disposition.

Facts/Syllabus

After Ohio police found photographs in petitioner Clyde Osborne's home, each of which depicted a nude male adolescent posed in sexually explicit position, he was convicted of violating a state statute prohibiting any person from possessing or viewing any material or performance showing a minor who is not his child or ward in a state of nudity unless (a) the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein, or (b) the possessor knows that the minor's parents or guardian has consented in writing to such photographing or use of the minor. 

The Ohio Court of Appeals and the Supreme Court of Ohio affirmed the conviction. The state supreme court rejected Osborne's contention that the First Amendment prohibits the states from proscribing the private possession of child pornography. The court also found that the statute is not unconstitutionally overbroad, since, in light of its specific exceptions, it must be read as only applying to depictions of nudity involving a lewd exhibition or graphic focus on the minor's genitals, and since scienter is an essential element of the offense. In rejecting Osborne's contention that the trial court erred in not requiring the government to prove lewd exhibition and scienter as elements of his crime, the court emphasized that he had not objected to the jury instructions given at his trial, and stated that the failures of proof did not amount to plain error.