Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, April 19, 1990 TAG: 9004190356
SECTION: NATIONAL/INTERNATIONAL PAGE: A1 EDITION: METRO
SOURCE: From The Baltimore Sun and The Washington Post
DATELINE: WASHINGTON LENGTH: Medium
In another Wednesday decision, the court gave federal judges power to order local officials to increase property taxes to finance school desegregation, even when the tax increases would violate state law.
In the child pornography case, the court's 6-3 ruling apparently gave constitutional permission for 19 states' laws and very likely will encourage other legislatures to pass similar laws against private possession of items showing children engaged in sex acts or poses.
Although those 19 state laws differ in scope, the Supreme Court upheld the broadest of them all - the one in Ohio.
The new decision suggested that laws against private possession of child pornography will not be valid if they seek to outlaw items merely because they show naked children. "Depictions of nudity, without more, constitute protected expression," the court declared.
Justice Byron White's opinion indicated that such laws, to be valid, would have to be aimed at "lewd" displays or photographs of children, that is, those that have "a graphic focus" on sex organs and are kept for reasons "not morally innocent."
The Ohio law that was upheld Wednesday makes it a crime for people to keep at home nude photos of children who are not their own. The state Supreme Court, however, has narrowed that law so that it applies only to possession of "lewd" items.
White's opinion suggested that laws like that could not apply to "a family friend's possession of an innocuous picture of an unclothed infant."
But Justice William Brennan, writing for the three dissenters, said the attempts by the majority to limit the scope of such laws to "lewd" materials would not rectify the broad sweep of laws like Ohio's and would, in fact, "create a new problem of vagueness" so that the public would still not know what was banned from private possession.
Brennan noted that a "well-known" advertisement for a suntan lotion shows a dog pulling down a little girl's swimsuit, showing the difference between her suntanned back and her pale bottom. He commented: "That this advertisement might be illegal in Ohio is an absurd yet altogether too conceivable conclusion under the language of the statute."
In the school desegregation case, the 5-to-4 ruling was a surprise victory for civil-rights advocates, who have regarded the conservative court majority as increasingly hostile. In January, for example, the court said a federal judge had no power to impose contempt fines gainst Yonkers, N.Y., officials who failed to implement a court-ordered housing desegregation plan.
In Wednesday's case, Missouri v. Jenkins, the court agreed unanimously that the trial court judge overstepped his authority when he personally ordered a property tax increase to finance an ambitious school desegregation program in Kansas City, Mo.
But five justices said the judge had the power simply to instruct local officials to raise the taxes themselves in order to further desegregation. Missouri law sets a cap on local property taxes unless voters approve higher rates, but the court said the federal judge could authorize the local school board to override that restriction, nearly doubling the property tax rate.
White, writing for the majority, said state laws could be disregarded when federal judges determine it is necessary to remedy constitutional violations. "To hold otherwise would fail to take account of the obligations of local government . . . to fulfill the requirements that the Constitution imposes on them," White said.
Justice Anthony Kennedy, dissenting, accused the court of allowing "an expansion of power in the federal judiciary beyond all precedent." The court's "causal embrace of taxation imposed by the unelected, life-tenured federal judiciary disregards fundamental precepts for the democratic control of public institutions," he said.
by CNB