Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, April 18, 1990 TAG: 9004180548
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: EVENING
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
By a 6-3 vote, the court upheld an Ohio law that makes it a crime to possess so-called kiddie porn. The decision extends a 1982 ruling in which the justices said production and distribution of sexual depictions of children can be outlawed.
The justices had been told the Ohio law is the toughest kiddie porn legislation in the nation.
Nonetheless, the court on narrower grounds struck down the conviction of Clyde Osborne of Columbus.
The justices said the jury was not instructed properly. They ordered a new trial for Osborne, who had been sentenced to six months in prison and fined $100 for possessing nude photos of a boy believed to be 13 or 14.
The case pitted the sanctity of the home against the safety and welfare of children.
Justice Byron White, writing for the court, said Ohio legitimately seeks to "destroy a market for the exploitative use of children" by making possession of child pornography a crime.
"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," he said.
White also said Ohio's law is not too broad because it specifically forbids possession of lewd material or material that focuses on genitals.
A prosecution could not be based on possession of innocuous photos of one's children wearing no clothes, he said.
White was joined by Chief Justice William Rehnquist and Justices Harry Blackmun, Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy.
In a dissenting opinion, Justice William Brennan said the court was sacrificing privacy rights in its zeal to crack down on child pornography.
"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," he said.
"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."
Joining Brennan's opinion were Justices Thurgood Marshall and John Paul Stevens.
The court for over 30 years has allowed states to outlaw the sale and distribution of obscenity, ruling in a series of cases that obscene material is not constitutionally protected.
But the court in 1969 barred states from outlawing the mere at-home possession of obscene materials.
The court in 1982 carved out its newest exception to free-speech rights. It let states outlaw material depicting children in sexual performances or poses - even if not obscene.
Today, the court said the at-home possession of kiddie porn is not entitled to the same protection given to at-home possession of obscenity depicting adults.
Osborne was 61 when he was prosecuted in 1985 for possessing the nude photos of a youngster. Prosecutors said Osborne got the pictures from a Florida mail-order business, and had placed them in a photo album in his home.
The photos were discovered after police searched Osborne's home on a tip that he had bought the material.
Ohio's law bans possession or viewing of "any material or performance that shows a minor . . . in a state of nudity." Exemptions were included for parents and, among other things, for photos with an artistic, medical or scientific purpose.
In upholding Osborne's conviction, the Ohio Supreme Court narrowed the law's ban to possession of "lewd" depictions of children under 18.
When Osborne's case was argued before the high court last December, Columbus City Attorney Ronald O'Brien urged the court to let authorities attack kiddie porn by making possession a crime.
"Child pornography has been driven underground" by the court's 1982 ruling, O'Brien said then. "Because it's underground, the additional tool of having a possession offense is necessary."
O'Brien and Osborne's lawyer, public defender Adele Shank, disagreed in December over how many other states have similar laws.
O'Brien told the justices that 17 other states have similar kiddie porn laws. They are Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Illinois, Kansas, Minnesota, Missouri, Nebraska, Oklahoma, South Dakota, Texas, Utah, Washington and West Virginia.
by CNB