After Ohio police found photographs in petitioner 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. An intermediate appellate court and the State
Supreme Court affirmed the conviction. The latter 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.
Held:
1. Ohio may constitutionally proscribe the possession and
viewing of child pornography. Even assuming that Osborne has a
valid First Amendment interest in such activities, this case is
distinct from
Stanley v. Georgia, 394 U.
S. 557, which struck down a Georgia law outlawing the
private possession of obscene material on the ground that the
State's justifications for the law -- primarily, that obscenity
would poison the minds of its viewers -- were inadequate. In
contrast, Ohio does not rely on a paternalistic interest in
regulating Osborne's mind, but has enacted its law on the basis of
its compelling interests in protecting the physical and
psychological wellbeing of minors and in destroying the market for
the exploitative use of children by penalizing those who possess
and view the offending materials.
See New York v. Ferber,
458 U. S. 747,
458 U. S.
756-758,
458 U. S.
761-762. Moreover, Ohio's ban encourages possessors to
destroy such materials, which permanently record the victim's abuse
and thus
Page 495 U. S. 104
may haunt him for years to come,
see id. at 759, and
which, available evidence suggests, may be used by pedophiles to
seduce other children. Pp.
495 U. S. 108-111.
2. Osborne's First Amendment overbreadth arguments are
unpersuasive. Pp.
495 U. S.
111-122.
(a) The Ohio statute is not unconstitutionally overbroad.
Although, on its face, the statute purports to prohibit
constitutionally protected depictions of nudity, it is doubtful
that any overbreadth would be "substantial" under this Court's
cases, in light of the statutory exemptions and "proper purposes"
provisions. In any event, the statute, as construed by the Ohio
Supreme Court, plainly survives overbreadth scrutiny. By limiting
the statute's operation to nudity that constitutes lewd exhibition
or focuses on genitals, that court avoided penalizing persons for
viewing or possessing innocuous photographs of naked children, and
thereby rendered the "nudity" language permissible.
See Ferber,
supra, at
458 U. S. 765.
Moreover, the statute's failure, on its face, to provide a
mens
rea requirement is cured by the court's conclusion that the
State must establish scienter under the Ohio default statute
specifying that recklessness applies absent a statutory intent
provision. Pp.
495 U. S.
111-115.
(b) It was not impermissible for the State Supreme Court to rely
on its narrowed construction of the statute when evaluating
Osborne's overbreadth claim. A statute as construed may be applied
to conduct occurring before the construction, provided such
application affords fair warning to the defendant.
See, e.g.,
Dombrowski v. Pfister, 380 U. S. 479,
380 U. S. 491,
n. 7. It is obvious from the face of the child pornography statute,
and from its placement within the "Sexual Offenses" chapter of the
Ohio Code, that Osborne had notice that his possession of the
photographs at issue was proscribed.
Bouie v. City of
Columbia, 378 U. S. 347;
Rabe v. Washington, 405 U. S. 313; and
Marks v. United States, 430 U. S. 188,
distinguished.
Shuttlesworth v. Birmingham, 382 U. S.
87 -- which stands for the proposition that, where a
State Supreme Court narrows an unconstitutionally overbroad
statute, the State must ensure that defendants are convicted under
the statute as it is subsequently construed, and not as it was
originally written -- does not conflict with the holding in this
case. Nor does
Massachusetts v. Oakes, 491 U.
S. 576 -- in which five Justices agreed in a separate
opinion that a state legislature could not cure a potential
overbreadth problem through a postconviction statutory amendment --
support Osborne's view that an overbroad statute is void as
written, such that a court may not narrow it, affirm a conviction
on the basis of the narrowing construction, and leave the statute
in full force. Since courts routinely adopt the latter course,
acceptance of Osborne's proposition would require a radical
reworking of American law.
Page 495 U. S. 105
Moreover, the
Oakes approach is based on the fear that
legislators, who know they can cure their own mistakes by amendment
without significant cost, may not be careful to avoid drafting
overbroad laws in the first place. A similar effect will not be
likely if a judicial construction of a statute to eliminate
overbreadth is allowed to be applied in the case before the Court,
since legislatures cannot be sure that the statute, when examined
by a court, will be saved by a narrowing construction rather than
invalidated for overbreadth, and since applying even a narrowed
statute to pending cases might be barred by the Due Process Clause.
Furthermore, requiring that statutes be facially invalidated
whenever overbreadth is perceived would very likely invite
reconsideration or redefinition of the overbreadth doctrine in a
way that would not serve First Amendment interests. Pp.
495 U. S.
115-122.
3. Nevertheless, due process requires that Osborne's conviction
be reversed and the case remanded for a new trial, since it is
unclear whether the conviction was based on a finding that the
State had proved each of the elements of the offense. It is true
that this Court is precluded from reaching the due process
challenge with respect to the scienter element of the crime,
because counsel's failure to comply with the state procedural rule
requiring an objection to faulty jury instructions constitutes an
independent state law ground adequate to support the result below.
However, this Court is not so barred with respect to counsel's
failure to object to the failure to instruct on lewdness, since,
shortly before the brief trial, counsel moved to dismiss on the
ground that the statute was overbroad in its failure to allow the
viewing of innocent nude photographs. Nothing would be gained by
requiring counsel to object a second time, specifically to the jury
instructions. The assertion of federal rights, when plainly and
reasonably made, may not be defeated under the name of local
practice.
Cf. Douglas v. Alabama, 380 U.
S. 415,
380 U. S.
421-422. Pp.
495 U. S.
122-125.
37 Ohio St.3d 249, 525 N.E.2d 1363, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined. BLACKMUN, J., filed a concurring opinion,
post, p.
495 U. S. 126.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
STEVENS, JJ., joined,
post, p.
495 U. S.
126.
Page 495 U. S. 106
Justice WHITE delivered the opinion of the Court.
In order to combat child pornography, Ohio enacted Rev.Code Ann.
§ 2907.323(A)(3) (Supp.1989), which provides in pertinent part:
"(A) No person shall do any of the following:"
"
* * * *"
"(3) Possess or view any material or performance that shows a
minor who is not the person's child or ward in a state of nudity,
unless one of the following applies:"
"(a) The material or performance is sold, disseminated,
displayed, possessed, controlled, brought or caused to be brought
into this state, or presented for a bona fide artistic, medical,
scientific, educational, religious, governmental, judicial, or
other proper purpose, by or to a physician, psychologist,
sociologist, scientist, teacher, person pursuing bona fide studies
or research, librarian, clergyman, prosecutor, judge, or other
person having a proper interest in the material or
performance."
"(b) The person knows that the parents, guardian, or custodian
has consented in writing to the photographing
Page 495 U. S. 107
or use of the minor in a state of nudity and to the manner in
which the material or performance is used or transferred."
Petitioner, Clyde Osborne, was convicted of violating this
statute and sentenced to six months in prison after the Columbus,
Ohio, police, pursuant to a valid search, found four photographs in
Osborne's home. Each photograph depicts a nude male adolescent
posed in a sexually explicit position. [
Footnote 1]
The Ohio Supreme Court affirmed Osborne's conviction after an
intermediate appellate court did the same.
State v. Young,
37 Ohio St.3d 249, 525 N.E.2d 1363 (1988). Relying on one of its
earlier decisions, the Court first rejected Osborne's contention
that the First Amendment prohibits the States from proscribing the
private possession of child pornography.
Next, the Court found that § 2907.323(A)(3) is not
unconstitutionally overbroad. In so doing, the Court, relying on
the statutory exceptions, read § 2907.323(A)(3) as only applying to
depictions of nudity involving a lewd exhibition or graphic focus
on a minor's genitals. The Court also found that scienter is an
essential element of a § 2907.323(A)(3) offense. Osborne objected
that the trial judge had not insisted that the government prove
lewd exhibition and scienter as elements of his crime. The Ohio
Supreme Court rejected these contentions because Osborne had failed
to object to the
Page 495 U. S. 108
jury instructions given at his trial and the Court did not
believe that the failures of proof amounted to plain error.
[
Footnote 2]
The Ohio Supreme Court denied a motion for rehearing, and
granted a stay pending appeal to this Court. We noted probable
jurisdiction last June. 492 U.S. 904.
I
The threshold question in this case is whether Ohio may
constitutionally proscribe the possession and viewing of child
pornography or whether, as Osborne argues, our decision in
Stanley v. Georgia, 394 U. S. 557
(1969), compels the contrary result. In
Stanley, we struck
down a Georgia law outlawing the private possession of obscene
material. We recognized that the statute impinged upon Stanley's
right to receive information in the privacy of his home, and we
found Georgia's justifications for its law inadequate.
Id.
at
394 U. S.
564-568. [
Footnote
3]
Stanley should not be read too broadly. We have
previously noted that
Stanley was a narrow holding,
see United States v. 12 200-ft. Reels of Film,
413 U. S. 123,
413 U. S. 127
(1973), and, since the decision in that case, the value of
permitting child pornography has been characterized as "exceedingly
modest, if not
de minimis."
New York v. Ferber,
458 U. S. 747,
458 U. S. 762
(1982). But assuming, for the sake of argument, that Osborne has a
First Amendment interest in viewing and possessing child
pornography, we nonetheless find this case distinct from
Stanley because the interests underlying child pornography
prohibitions far exceed the interests justifying the Georgia law at
issue in
Stanley. Every court to address the issue has so
concluded.
See e.g., People v. Geever, 122 Ill. 2d
313, 327-328, 119 Ill.Dec. 341, 347-348,
522 N.E.2d
1200, 1206-1207 (1988);
Page 495 U. S. 109
Felton v. State, 526
So. 2d 635, 637 (Ala.Ct.Crim.App.),
aff'd, sub nom. Ex
parte Felton, 526 So. 2d
638, 641 (Ala.1988);
State v. Davis, 53 Wash. App.
502, 505, 768 P.2d 499, 501 (1989);
Savery v. Texas, 767
S.W.2d 242, 245 (Tex.App.1989);
United States v.
Boffardi, 684 F.
Supp. 1263, 1267 (SDNY 1988).
In
Stanley, Georgia primarily sought to proscribe the
private possession of obscenity because it was concerned that
obscenity would poison the minds of its viewers. 394 U.S. at
394 U. S. 565.
[
Footnote 4] We responded
that
"[w]hatever the power of the state to control public
dissemination of ideas inimical to the public morality, it cannot
constitutionally premise legislation on the desirability of
controlling a person's private thoughts."
Id. at
394 U. S. 566.
The difference here is obvious: the State does not rely on a
paternalistic interest in regulating Osborne's mind. Rather, Ohio
has enacted § 2907.323(A)(3) in order to protect the victims of
child pornography; it hopes to destroy a market for the
exploitative use of children.
"It is evident beyond the need for elaboration that a State's
interest in 'safeguarding the physical and psychological wellbeing
of a minor' is 'compelling.' . . . The legislative judgment, as
well as the judgment found in relevant literature, is that the use
of children as subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the child. That
judgment, we think, easily passes muster under the First
Amendment."
Ferber, 458 U.S. at
458 U. S.
756-758 (citations omitted). It is also surely
reasonable for the State to conclude that it will decrease the
production of child pornography if it penalizes those who possess
and view the product,
Page 495 U. S. 110
thereby decreasing demand. In
Ferber, where we upheld a
New York statute outlawing the distribution of child pornography,
we found a similar argument persuasive:
"[t]he advertising and selling of child pornography provide an
economic motive for, and are thus an integral part of, the
production of such materials, an activity illegal throughout the
Nation."
"It rarely has been suggested that the constitutional freedom
for speech and press extends its immunity to speech or writing used
as an integral part of conduct in violation of a valid criminal
statute."
Id. at
458 U. S.
761-762, quoting
Giboney v. Empire Storage & Ice
Co., 336 U. S. 490
(1949).
Osborne contends that the State should use other measures,
besides penalizing possession, to dry up the child pornography
market. Osborne points out that, in
Stanley, we rejected
Georgia's argument that its prohibition on obscenity possession was
a necessary incident to its proscription on obscenity distribution.
394 U.S. at
394 U. S.
567-568. This holding, however, must be viewed in light
of the weak interests asserted by the State in that case.
Stanley itself emphasized that we did not
"mean to express any opinion on statutes making criminal
possession of other types of printed, filmed, or recorded
materials. . . . In such cases, compelling reasons may exist for
overriding the right of the individual to possess those
materials."
Id. at
394 U. S. 568,
n. 11. [
Footnote 5]
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.
According to the State, since the time of our decision in
Ferber, much of the child pornography market has been
driven underground; as a result, it is now difficult, if not
impossible, to solve the child pornography problem by only
attacking production and distribution. Indeed, 19 States
Page 495 U. S. 111
have found it necessary to proscribe the possession of this
material. [
Footnote 6]
Other interests also support the Ohio law. First, as
Ferber recognized, the materials produced by child
pornographers permanently record the victim's abuse. The
pornography's continued existence causes the child victims
continuing harm by haunting the children in years to come. 458 U.S.
at
458 U. S. 759.
The State's ban on possession and viewing encourages the possessors
of these materials to destroy them. Second, encouraging the
destruction of these materials is also desirable because evidence
suggests that pedophiles use child pornography to seduce other
children into sexual activity. [
Footnote 7]
Given the gravity of the State's interests in this context, we
find that Ohio may constitutionally proscribe the possession and
viewing of child pornography.
II
Osborne next argues that, even if the State may constitutionally
ban the possession of child pornography, his conviction
Page 495 U. S. 112
is invalid because § 2907.323(A)(3) is unconstitutionally
overbroad in that it criminalizes an intolerable range of
constitutionally protected conduct. [
Footnote 8] In our previous decisions discussing the First
Amendment overbreadth doctrine, we have repeatedly emphasized that,
where a statute regulates expressive conduct, the scope of the
statute does not render it unconstitutional unless its overbreadth
is not only "real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep."
Broadrick v.
Oklahoma, 413 U. S. 601,
413 U. S. 615
(1973). Even where a statute at its margins infringes on protected
expression,
"facial invalidation is inappropriate if the 'remainder of the
statute . . . covers a whole range of easily identifiable and
constitutionally proscribable . . . conduct. . . .'"
New York v. Ferber, 458 U.S. at
458 U. S. 770,
n. 25.
The Ohio statute, on its face, purports to prohibit the
possession of "nude" photographs of minors. We have stated that
depictions of nudity, without more, constitute protected
expression.
See Ferber, supra, at
458 U. S. 765,
n. 18. Relying on this observation, Osborne argues that the
statute, as written, is substantially overbroad. We are sceptical
of this claim because, in light of the statute's exemptions and
"proper purposes" provisions, the statute may not be substantially
overbroad under our cases. [
Footnote 9] However that may be, Osborne's
Page 495 U. S. 113
overbreadth challenge, in any event, fails because the statute,
as construed by the Ohio Supreme Court on Osborne's direct appeal,
plainly survives overbreadth scrutiny. Under the Ohio Supreme Court
reading, the statute prohibits
"the possession or viewing of material or performance of a minor
who is in a state of nudity, where such nudity constitutes a lewd
exhibition or involves a graphic focus on the genitals, and where
the person depicted is neither the child nor the ward of the person
charged."
37 Ohio St.3d at 252, 525 N.E.2d at 1368. [
Footnote 10] By limiting the statute's operation
in
Page 495 U. S. 114
this manner, the Ohio Supreme Court avoided penalizing persons
for viewing or possessing innocuous photographs of naked children.
We have upheld similar language against overbreadth challenges in
the past. In
Ferber, we affirmed a conviction under a New
York statute that made it a crime to promote the "
lewd
exhibition of [a child's] genitals.'" 458 U.S. at 458 U. S. 751.
We noted that
"[t]he term 'lewd exhibition of the genitals' is not unknown in
this area and, indeed, was given in
Miller [v. California,
413 U. S.
15 (1973)] as an example of a permissible
regulation."
Id. at
458 U. S. 765.
[
Footnote 11]
Page 495 U. S. 115
The Ohio Supreme Court also concluded that the State had to
establish scienter in order to prove a violation of §
2907.323(A)(3) based on the Ohio default statute specifying that
recklessness applies when another statutory provision lacks an
intent specification.
See n 9,
supra. The statute on its face lacks a
mens rea requirement, but that omission brings into play
and is cured by another law that plainly satisfies the requirement
laid down in
Ferber that prohibitions on child pornography
include some element of scienter. 458 U.S. at
458 U. S.
765.
Osborne contends that it was impermissible for the Ohio Supreme
Court to apply its construction of § 2907.323(A)(3) to him --
i.e., to rely on the narrowed construction of the statute
when evaluating his overbreadth claim. Our cases, however, have
long held that a statute as construed
"may be applied to conduct occurring prior to the construction,
provided such application affords fair warning to the
defendan[t]."
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S. 491,
n. 7 (citations omitted). [
Footnote 12] In
Hamling v. United
States,
Page 495 U. S. 116
418 U. S. 87
(1974), for example, we reviewed the petitioners' convictions for
mailing and conspiring to mail an obscene advertising brochure
under 18 U.S.C. § 1461. That statute makes it a crime to mail an
"obscene, lewd, lascivious, indecent, filthy or vile article,
matter, thing, device, or substance." In
Hamling, for the
first time, we construed the term "obscenity" as used in § 1461
"to be limited to the sort of "patently offensive
representations or depictions of that specific
hard core'
sexual conduct given as examples in Miller v.
California.""
In light of this construction, we rejected the petitioners'
facial challenge to the statute as written, and we affirmed the
petitioners' convictions under the section after finding that the
petitioners had fair notice that their conduct was criminal. 418
U.S. at
418 U. S.
114-116.
Like the
Hamling petitioners, Osborne had notice that
his conduct was proscribed. It is obvious from the face of §
2907.323(A)(3) that the goal of the statute is to eradicate child
pornography. The provision criminalizes the viewing and possessing
of material depicting children in a state of nudity for other than
"proper purposes." The provision appears in the "Sex Offenses"
chapter of the Ohio Code. Section 2907.323 is preceded by §
2907.322, which proscribes "[p]andering sexually oriented matter
involving a minor," and followed by § 2907.33, which proscribes
"[d]eception to obtain matter harmful to juveniles." That Osborne's
photographs of adolescent boys in sexually explicit situations
constitute child pornography hardly needs elaboration. Therefore,
although § 2907.323(A)(3), as written, may have been imprecise at
its fringes, someone in Osborne's position would not be surprised
to learn that his possession of the four photographs at issue in
this case constituted a crime.
Because Osborne had notice that his conduct was criminal, his
case differs from three cases upon which he relies:
Bouie v.
City of Columbia, 378 U. S. 347
(1964),
Rabe v.
Washington,
Page 495 U. S. 117
405 U. S. 313
(1972), and
Marks v. United States, 430 U.
S. 188 (1977). In
Bouie, the petitioners had
refused to leave a restaurant after being asked to do so by the
restaurant's manager. Although the manager had not objected when
the petitioners entered the restaurant, the petitioners were
convicted of violating a South Carolina trespass statute
proscribing "
entry upon the lands, of another . . . after
notice from the owner or tenant prohibiting such entry.'" 378 U.S.
at 378 U. S. 349.
Affirming the convictions, the South Carolina Supreme Court
construed the trespass law as also making it a crime for an
individual to remain on another's land after being asked to leave.
We reversed the convictions on due process grounds, because the
South Carolina Supreme Court's expansion of the statute was
unforeseeable and therefore the petitioners had no reason to
suspect that their conduct was criminal. Id. at
378 U. S.
350-352.
Likewise, in
Rabe v. Washington, supra, the petitioner
had been convicted of violating a Washington obscenity statute
that, by its terms, did not proscribe the defendant's conduct. On
petitioner's appeal, the Washington Supreme Court nevertheless
affirmed the petitioner's conviction after construing the
Washington obscenity statute to reach the petitioner. We overturned
the conviction because the Washington Supreme Court's broadening of
the statute was unexpected; therefore the petitioner had no warning
that his actions were proscribed.
Id. at
378 U. S.
315.
And in
Marks v. United States, supra, we held that the
retroactive application of the obscenity standards announced in
Miller v. California, 413 U. S. 15
(1973), to the potential detriment of the petitioner, violated the
Due Process Clause because, at the time that the defendant
committed the challenged conduct, our decision in
Memoirs v.
Massachusetts, 383 U. S. 413
(1966), provided the governing law. The defendant could not suspect
that his actions would later become criminal when we expanded the
range of constitutionally proscribable conduct in
Miller.
Page 495 U. S. 118
Osborne suggests that our decision here is inconsistent with
Shuttlesworth v. Birmingham, 382 U. S.
87 (1965); we disagree. In
Shuttlesworth, the
defendant had been convicted of violating an Alabama statute that,
when read literally, provided that "a person may stand on a public
sidewalk in Birmingham only at the whim of any police officer of
that city."
Id. at
382 U. S. 90. We
stated that "[t]he constitutional vice of so broad a provision
needs no demonstration."
Ibid. As subsequently construed
by the Alabama Supreme Court, however, the statute merely made it
criminal for an individual that was blocking free passage along a
public street to disobey a police officer's order to move. We noted
that
"[i]t is our duty, of course, to accept this state judicial
construction of the ordinance. . . . As so construed, we cannot say
that the ordinance is unconstitutional, though it requires no great
feat of imagination to envisage situations in which such an
ordinance might be unconstitutionally applied."
Id. at
382 U. S. 91. We
nevertheless reversed the defendant's conviction because it was not
clear that the state had convicted the defendant under the statute
as construed, rather than as written.
Id. at
382 U. S. 91-92.
[
Footnote 13]
Shuttlesworth, then stands for the proposition that, where
a State Supreme Court narrows an unconstitutionally overbroad
statute, the State must ensure that defendants are convicted under
the statute as it is subsequently construed, and not as it was
originally written; this proposition in no way conflicts with our
holding in this case.
Finally, despite Osborne's contention to the contrary, we do not
believe that
Massachusetts v. Oakes, 491 U.
S. 576 (1989), supports his theory of this case. In
Oakes, the petitioner challenged a Massachusetts
pornography statute as
Page 495 U. S. 119
overbroad; since the time of the defendant's alleged crime,
however, the state had substantially narrowed the statute through a
subsequent legislative enactment -- an amendment to the statute. In
a separate opinion, five Justices agreed that the state legislature
could not cure the potential overbreadth problem through the
subsequent legislative action; the statute was void as written.
Id. at
491 U. S.
585-586.
Osborne contends that
Oakes stands for a similar but
distinct proposition that, when faced with a potentially
overinclusive statute, a court may not construe the statute to
avoid overbreadth problems and then apply the statute, as
construed, to past conduct. The implication of this argument is
that, if a statute is overbroad as written, then the statute is
void and incurable. As a result, when reviewing a conviction under
a potentially overbroad statute, a court must either affirm or
strike down the statute on its face, but the court may not, as the
Ohio Supreme Court did in this case, narrow the statute, affirm on
the basis of the narrowing construction, and leave the statute in
full force. We disagree.
First, as indicated by our earlier discussion, if we accepted
this proposition, it would require a radical reworking of our law.
Courts routinely construe statutes so as to avoid the statutes'
potentially overbroad reach, apply the statute in that case, and
leave the statute in place. In
Roth v. United States,
354 U. S. 476
(1957), for example, the court construed the open-ended terms used
in 18 U.S.C. § 1461, which prohibits the mailing of material that
is "obscene, lewd, lascivious, indecent, filthy or vile." Justice
Harlan characterized
Roth in this way:
"The words of § 1461, 'obscene, lewd, lascivious, indecent,
filthy or vile,' connote something that is portrayed in manner so
offensive as to make is unacceptable under current community
mores. While in common usage the words have different
shades of meaning, the statute since its inception has always been
taken as aimed at obnoxiously debasing portrayals of sex. Although
the
Page 495 U. S. 120
statute condemns such material irrespective of the
effect it may have upon those into whose hands it falls,
the early case of
United States v. Bennet, 24 Fed.Cas.
1093 (No. 14571), put a limiting gloss upon the statutory language:
the statute reaches only indecent material which, as now expressed
in
Roth v. United States, supra, at
354 U. S.
489 'taken as a whole appeals to prurient interest.'
Manuel Enterprises v. Day, 370 U. S.
478,
370 U. S. 482-484 (1962)
(footnotes omitted); (emphasis in original)."
See also Hamling, 418 U.S. at
418 U. S. 112
(quoting the above). The petitioner's conviction was affirmed in
Roth, and federal obscenity law was left in force. 354
U.S. at
354 U. S. 494.
[
Footnote 14] We, moreover,
have long respected the state Supreme Courts' ability to narrow
state statutes so as to limit the statute's scope to unprotected
conduct.
See, e.g., Ginsberg v. New York, 390 U.
S. 629 (1968).
Second, we do not believe that
Oakes compels the
proposition that Osborne urges us to accept. In
Oakes,
Justice SCALIA, writing for himself and four others, reasoned
that
"The overbreadth doctrine serves to protect constitutionally
legitimate speech not merely
ex post that is, after the
offending statute is enacted, but also
ex ante that is,
when the legislature is contemplating what sort of statute to
enact. If the promulgation of overbroad laws affecting speech was
cost free . . . that is, if
no conviction of
constitutionally proscribable conduct would be
Page 495 U. S. 121
lost so long as the offending statute was narrowed before the
final appeal, . . . then legislatures would have significantly
reduced incentive to stay within constitutional bounds in the first
place. When one takes account of those overbroad statutes that are
never challenged, and of the time that elapses before the ones that
are challenged are amended to come within constitutional bounds, a
substantial amount of legitimate speech would be 'chilled.' . . .
"
491 U.S. at
491 U. S. 586
(emphasis in original). In other words, five of the
Oakes
Justices feared that, if we allowed a legislature to correct its
mistakes without paying for them (beyond the inconvenience of
passing a new law), we would decrease the legislature's incentive
to draft a narrowly tailored law in the first place.
Legislators who know they can cure their own mistakes by
amendment without significant cost may not be as careful to avoid
drafting overbroad statutes as they might otherwise be. But a
similar effect will not be likely if a judicial construction of a
statute to eliminate overbreadth is allowed to be applied in the
case before the Court. This is so primarily because the
legislatures cannot be sure that the statute, when examined by a
court, will be saved by a narrowing construction rather than
invalidated for overbreadth. In the latter event, there could be no
convictions under that law even of those whose own conduct is
unprotected by the First Amendment. Even if construed to obviate
overbreadth, applying the statute to pending cases might be barred
by the Due Process Clause. Thus, careless drafting cannot be
considered to be cost-free based on the power of the courts to
eliminate overbreadth by statutory construction.
There are also other considerations. Osborne contends that, when
courts construe statutes so as to eliminate overbreadth,
convictions of those found guilty of unprotected conduct covered by
the statute must be reversed, and any further
Page 495 U. S. 122
convictions for prior reprehensible conduct are barred.
[
Footnote 15] Furthermore,
because he contends that overbroad laws implicating First Amendment
interests are nullities, and incapable of valid application from
the outset, this would mean that judicial construction could not
save the statute, even as applied to subsequent conduct unprotected
by the First Amendment. The overbreadth doctrine, as we have
recognized, is indeed "strong medicine,"
Broadrick v.
Oklahoma, 413 U.S. at
413 U. S. 613, and requiring that statutes be facially
invalidated whenever overbreadth is perceived would very likely
invite reconsideration or redefinition of the doctrine in a way
that would not serve First Amendment interests. [
Footnote 16]
III
Having rejected Osborne's
Stanley and overbreadth
arguments, we now reach Osborne's final objection to his
conviction: his contention that he was denied due process because
it is unclear that his conviction was based on a finding that each
of the elements of § 2907.323(A)(3) was present. [
Footnote 17] According
Page 495 U. S. 123
to the Ohio Supreme Court, in order to secure a conviction under
§ 2907.323(A)(3), the State must prove both scienter and that the
defendant possessed material depicting a lewd exhibition or a
graphic focus on genitals. The jury in this case was not instructed
that it could convict Osborne only for conduct that satisfied these
requirements.
The State concedes the omissions in the jury instructions, but
argues that Osborne waived his right to assert this due process
challenge because he failed to object when the instructions were
given at his trial. The Ohio Supreme Court so held, citing Ohio
law. The question before us now, therefore, is whether we are
precluded from reaching Osborne's due process challenge because
counsel's failure to comply with the procedural rule constitutes an
independent state law ground adequate to support the result below.
We have no difficulty agreeing with the State that Osborne's
counsel's failure to urge that the court instruct the jury on
scienter constitutes an independent and adequate state law ground
preventing us from reaching Osborne's due process contention on
that point. Ohio law states that proof of scienter is required in
instances, like the present one, where a criminal statute does not
specify the applicable mental state.
See n 9,
supra. The state procedural
rule, moreover, serves the State's important interest in ensuring
that counsel do their part in preventing trial courts from
providing juries with erroneous instructions.
With respect to the trial court's failure to instruct on
lewdness, however, we reach a different conclusion: based upon our
review of the record, we believe that counsel's failure to object
on this point does not prevent us from considering Osborne's
constitutional claim. Osborne's trial was brief: the State called
only the two arresting officers to the stand; the defense summoned
only Osborne himself. Right before trial, Osborne's counsel moved
to dismiss the case, contending
Page 495 U. S. 124
that § 2907.323(A)(3) is unconstitutionally overbroad. Counsel
stated:
"I'm filing a motion to dismiss based on the fact that [the]
statute is void for vagueness, overbroad . . . The statute's
overbroad because . . . a person couldn't have pictures of his own
grandchildren; probably couldn't even have nude photographs of
himself."
"Judge, if you had some nude photos of yourself when you were a
child, you would probably be violating the law. . . . "
"
* * * *"
"So grandparents, neighbors, or other people who happen to view
the photograph are criminally liable under the statute. And on that
basis, I'm going to ask the Court to dismiss the case."
Tr. 3-4. The prosecutor informed the trial judge that a number
of Ohio state courts had recently rejected identical motions
challenging § 2907.323(A)(3). Tr. 5-6. The court then overruled the
motion.
Id. at 7. Immediately thereafter, Osborne's
counsel proposed various jury instructions.
Ibid.
Given this sequence of events, we believe that we may reach
Osborne's due process claim, because we are convinced that
Osborne's attorney pressed the issue of the State's failure of
proof on lewdness before the trial court and, under the
circumstances, nothing would be gained by requiring Osborne's
lawyer to object a second time, specifically to the jury
instructions. The trial judge, in no uncertain terms, rejected
counsel's argument that the statute, as written, was overbroad. The
State contends that counsel should then have insisted that the
court instruct the jury on lewdness because, absent a finding that
this element existed, a conviction would be unconstitutional. Were
we to accept this position, we would "
force resort to an arid
ritual of meaningless form,' . . . and would further no perceivable
state interest."
James v. Kentucky, 466 U. S. 341,
466 U. S. 349
(1984), quoting
Staub v. City of Baxley, 355 U.
S. 313,
355 U. S. 320
(1958), and citing
Henry
Page 495 U. S. 125
v. Mississippi,
379 U. S. 443,
379 U. S.
448-449 (1965). As Justice Holmes warned us years
ago,
"[w]hatever springs the State may set for those who are
endeavoring to assert rights that the State confers, the assertion
of federal rights, when plainly and reasonably made, is not to be
defeated under the name of local practice."
Davis v. Wechsler, 263 U. S. 22,
263 U. S. 24
(1923).
Our decision here is analogous to our decision in
Douglas v.
Alabama, 380 U. S. 415
(1965). In that case, the Alabama Supreme Court had held that a
defendant had waived his confrontation clause objection to the
reading into evidence of a confession that he had given. Although
not following the precise procedure required by Alabama law,
[
Footnote 18] the defendant
had unsuccessfully objected to the prosecution's use of the
confession. We followed "our consistent holdings that the adequacy
of state procedural bars to the assertion of federal questions is
itself a federal question," and stated that,
"[i]n determining the sufficiency of objections, we have applied
the general principle that an objection which is ample and timely
to bring the alleged federal error to the attention of the trial
court and enable it to take appropriate corrective action is
sufficient to serve legitimate state interests, and therefore
sufficient to preserve the claim for review here."
Id. at
380 U. S. 422.
Concluding that "[n]o legitimate state interest would have been
served by requiring repetition of a patently futile objection," we
held that the Alabama procedural ruling did not preclude our
consideration of the defendant's constitutional claim.
Id.
at
380 U. S.
421-422. We reach a similar conclusion in this case.
IV
To conclude, although we find Osborne's First Amendment
arguments unpersuasive, we reverse his conviction and remand
Page 495 U. S. 126
for a new trial in order to ensure that Osborne's conviction
stemmed from a finding that the State had proved each of the
elements of § 2907.323(A)(3).
So ordered.
[
Footnote 1]
Osborne contends that the subject in all of the pictures is the
same boy; Osborne testified at trial that he was told that the
youth was fourteen at the time that the photographs were taken.
App. 16. The government maintains that three of the pictures are of
one boy, and one of the pictures is of another. Three photographs
depict the same boy in different positions: sitting with his legs
over his head and his anus exposed; lying down with an erect penis
and with an electrical object in his hand; and lying down with a
plastic object which appears to be inserted in his anus. The fourth
photograph depicts a nude standing boy; it is unclear whether this
subject is the same boy photographed in the other pictures, because
the photograph only depicts the boy's torso.
[
Footnote 2]
Osborne also unsuccessfully raised a number of other challenges
that are not at issue before this Court.
[
Footnote 3]
We have since indicated that our decision in
Stanley
was "firmly grounded in the First Amendment."
Bowers v.
Hardwick, 478 U. S. 186,
478 U. S. 195
(1986).
[
Footnote 4]
Georgia also argued that its ban on possession was a necessary
complement to its ban on distribution (
see discussion
infra, at
495 U. S.
110), and that the possession law benefited the public
because, according to the state, exposure to obscene material might
lead to deviant sexual behavior or crimes of sexual violence. 394
U.S. at
394 U. S. 566.
We found a lack of empirical evidence supporting the latter claim,
and stated that "
[a]mong free men, the deterrents ordinarily to
be applied to prevent crime are education and punishment for
violations of the law. . . .'" Id. at 394 U. S.
566-567 (citation omitted).
[
Footnote 5]
As the dissent notes,
see post at
495 U. S. 141,
the
Stanley Court cited illicit possession of defense
information as an example of the type of offense for which
compelling state interests might justify a ban on possession.
Stanley, however, did not suggest that this crime
exhausted the entire category of proscribable offenses.
[
Footnote 6]
Ala.Code § 13A-12-192 (1988); Ariz.Rev.Stat. Ann. § 13-3553
(1989); Colo.Rev.Stat. § 18-6-403 (Supp.1989); Fla.Stat. § 827.071
(1989); Ga.Code Ann. § 16-12-100 (1989); Idaho Code § 18-1507
(1987); Ill.Rev.Stat., ch. 38, � 11-20.1 (1987); Kans.Stat.Ann. §
21-3516 (Supp.1989); Minn.Stat. § 617.247 (1988); Mo.Rev.Stat. §
573.037 (Supp.1989); Neb.Rev.Stat. § 28-809 (1989); Nev.Rev.Stat. §
200.730 (1987); Ohio Rev.Code Ann. §§ 2907.322 and 2907.323
(Supp.1989); Okla.Stat., Tit. 21, § 1021.2 (Supp.1989);
S.D.Comp.Laws Ann. § 22-22-23, 22-22-23.1 (1988); Tex.Penal Code
Ann. § 43.26 (1989 and Supp. 1989-1990); Utah Code Ann. §
76-5a-3(1)(a) (Supp.1989), Wash. Rev.Code § 9.68 A. 070 (1989);
W.Va.Code § 61-8C-3 (1989).
[
Footnote 7]
The Attorney General's Commission on Pornography, for example,
states that
"Child pornography is often used as part of a method of seducing
child victims. A child who is reluctant to engage in sexual
activity with an adult or to pose for sexually explicit photos can
sometimes be convinced by viewing other children having 'fun'
participating in the activity."
1 Attorney General's Commission on Pornography, Final Report 649
(1986) (footnotes omitted).
See also D. Campagna and D.
Poffenberger, Sexual Trafficking in Children 118 (1988), S.
O'Brien, Child Pornography 89 (1983).
[
Footnote 8]
In the First Amendment context, we permit defendants to
challenge statutes on overbreadth grounds regardless of whether the
individual defendant's conduct is constitutionally protected.
"The First Amendment doctrine of substantial overbreadth is an
exception to the general rule that a person to whom a statute may
be constitutionally applied cannot challenge the statute on the
ground that it may be unconstitutionally applied to others."
Massachussets v. Oakes, 491 U.
S. 576,
491 U. S. 581
(1989).
[
Footnote 9]
The statute applies only where an individual possesses or views
the depiction of a minor "who is not the person's child or ward."
The State, moreover, does not impose criminal liability if
either
"[t]he material or performance is sold, disseminated, displayed,
possessed, controlled, brought or caused to be brought into this
state, or presented for a bona fide artistic, medical, scientific,
educational, religious, governmental, judicial, or other proper
purpose, by or to a physician, psychologist, sociologist,
scientist, teacher, person pursuing bona fide studies or research,
librarian, clergyman, prosecutor, judge, or other person having a
proper interest in the material or performance,"
or
"[t]he person knows that the parents, guardian, or custodian has
consented in writing to the photographing or use of the minor in a
state of nudity and to the manner in which the material or
performance is used or transferred."
It is true that, despite the statutory exceptions, one might
imagine circumstances in which the statute, by its terms,
criminalizes constitutionally protected conduct. If, for example, a
parent gave a family friend a picture of the parent's infant taken
while the infant was unclothed, the statute would apply. But, given
the broad statutory exceptions and the prevalence of child
pornography, it is far from clear that the instances where the
statute applies to constitutionally protected conduct are
significant enough to warrant a finding that the statute is
overbroad.
Cf. Oakes, supra, at
491 U. S.
589-590 (Opinion of SCALIA, J., joined by BLACKMUN, J.,
concurring judgment in part and dissenting in part).
Nor do we find very persuasive Osborne's contention that the
statute is unconstitutionally overbroad because it applies in
instances where viewers or possessors lack scienter. Although §
2907.323(A)(3) does not specify a mental state, Ohio law provides
that recklessness is the appropriate
mens rea where a
statute "neither specifies culpability nor plainly indicates a
purpose to impose strict liability." Ohio Rev.Stat. Ann. §
2901.21(B) (1987).
We also do not find any merit to Osborne's claim that §
2907.323(A)(3) is unconstitutionally vague because it does not
define the term "minor." Under Ohio law, a minor is anyone under
eighteen years of age. Ohio Rev.Code Ann. § 3109.01 (1989).
[
Footnote 10]
The Ohio Court reached this conclusion because,
"when the 'proper purposes' exceptions set forth in R.C.
2907.323(A)(3)(a) and (b) are considered, the scope of the
prohibited conduct narrows significantly. The clear purpose of
these exceptions . . . is to sanction the possession or viewing of
material depicting nude minors where that conduct is morally
innocent. Thus, the only conduct prohibited by the statute is
conduct which is
not morally innocent,
i.e., the
possession or viewing of the described material for prurient
purposes. So construed, the statute's proscription is not so broad
as to outlaw all depictions of minors in a state of nudity, but
rather only those depictions which constitute child
pornography."
37 Ohio St.3d at 251-252, 525 N.E.2d at 1367-1368 (emphasis in
original).
[
Footnote 11]
The statute upheld against an overbreadth challenge in
Ferber was, moreover, arguably less narrowly tailored than
the statute challenged in this case, because, unlike §
2907.323(A)(3), the New York law did not provide a broad range of
exceptions to the general prohibition on lewd exhibition of the
genitals. Despite this lack of exceptions, we upheld the New York
law, reasoning that
"[h]ow often, if ever, it may be necessary to employ children to
engage in conduct clearly within the reach of [the statute] in
order to produce educational, medical, or artistic works cannot be
known with certainty. Yet we seriously doubt, and it has not been
suggested, that these arguably impermissible applications of the
statute amount to more than a tiny fraction of the materials within
the statute's reach."
458 U.S. at
458 U. S.
773.
Justice BRENNAN distinguishes the Ohio statute, as construed,
from the statute upheld in
Ferber on the ground that the
Ohio statute proscribes "
lewd exhibitions of nudity,'
rather than `lewd exhibitions of the genitals.'" See
post at 495 U. S. 129
(emphasis in original). He notes that Ohio defines nudity to
include depictions of pubic areas, buttocks, the female breast, and
covered male genitals "in a discernibly turgid state."
Post at 495 U. S. 130.
We do not agree that this distinction between body areas and
specific body parts is constitutionally significant: the crucial
question is whether the depiction is lewd, not whether the
depiction happens to focus on the genitals or the buttocks. In any
event, however, Osborne would not be entitled to relief. The
context of the opinion indicates that the Ohio Supreme Court
believed that "the term `nudity,' as used in R.C. 2907.323(A)(3),
refers to a lewd exhibition of the genitals." State v.
Young, 37 Ohio St.3d 249, 258, 525 N.E.2d 1363, 1373
(1988).
We do not concede, as Justice BRENNAN suggests,
see
post at
495 U. S. 131,
n. 5, that the statute, as construed, might proscribe a family
friend's possession of an innocuous picture of an unclothed infant.
We acknowledge (
see n
9,
supra, ) that the statute, as written, might reach such
conduct, but, as construed, the statute would surely not apply,
because the photograph would not involve a "lewd exhibition or
graphic focus on the genitals" of the child.
[
Footnote 12]
This principle, of course, accords with the rationale underlying
overbreadth challenges. We normally do not allow a defendant to
challenge a law as it is applied to others. In the First Amendment
context, however, we have said that,
"[b]ecause of the sensitive nature of constitutionally protected
expression, we have not required that all those subject to
overbroad regulations risk prosecution to test their rights. For
free expression -- of transcendent value to all society, and not
merely to those exercising their rights -- might be the loser."
Dombrowski, 380 U.S. at
380 U. S. 486.
But once a statute is authoritatively construed, there is no longer
any danger that protected speech will be deterred, and therefore no
longer any reason to entertain the defendant's challenge to the
statute on its face.
[
Footnote 13]
In
Shuttlesworth, we also overturned the defendant's
conviction for violating another part of the same Alabama statute
because that provision had been interpreted as criminalizing an
individual's failure to follow a policeman's directions when the
policeman was directing traffic, and the crime alleged in
Shuttlesworth had nothing to do with motor traffic. 382
U.S. at
382 U. S.
93-95.
[
Footnote 14]
Buckley v. Valeo, 424 U. S. 1,
424 U. S. 76-80
(1976), is another landmark case where a law was construed to avoid
potential overbreadth problems, and left in place. Section 304(e)
of the Federal Election Campaign Act, 2 U.S.C. § 434(e) (1976 ed.),
imposes certain reporting requirements on "[e]very person . . . who
makes contributions or independent expenditures" exceeding $100
"other than by contribution to a political committee or candidate."
We stated that,
"[t]o insure that the reach of § 434(e) is not impermissibly
broad, we construe 'expenditure' for purposes of that section . . .
to reach only funds used for communications that expressly advocate
the election or defeat of a clearly identified candidate."
The section was upheld as construed. 424 U.S. at
424 U. S. 80
(footnote omitted).
[
Footnote 15]
Under Osborne's submission, even where the construction
eliminating overbreadth occurs in a civil case, the statute could
not be applied to conduct occurring prior to the decision; for,
although plainly within reach of the terms of the statute and
plainly not otherwise protected by the First Amendment, until the
statute was narrowed to comply with the Amendment, the conduct was
not illegal.
[
Footnote 16]
In terms of applying a ruling to pending cases, we see no
difference of constitutional import between a court's affirming a
conviction after construing a statute to avoid facial invalidation
on the ground of overbreadth and affirming a conviction after
rejecting a claim that the conduct at issue is not within the terms
of the statute. In both situations, the Due Process Clause would
require fair warning to the defendant that the statutory
proscription, as construed, covers his conduct. But even with the
due process limitation, courts repeatedly affirm convictions after
rejecting nonfrivolous claims that the conduct at issue is not
forbidden by the terms of the statute. As argued earlier, there is
no doubt whatsoever that Osborne's conduct is proscribed by the
terms of the child pornography statute involved here.
[
Footnote 17]
"[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is
charged."
In Re Winship, 397 U. S. 358,
397 U. S. 364
(1970).
[
Footnote 18]
The Alabama court had stated:
"'There must be a ruling sought and acted on before the trial
judge can be put in error. Here there was no ruling asked or
invoked as to the questions embracing the alleged confession.'"
380 U.S. at
380 U. S. 421
(citation omitted).
Justice BLACKMUN, concurring.
I join the Court's opinion. I write separately only to express
my agreement with Justice BRENNAN,
see post at
495 U. S. 146,
n. 20, that this Court's ability to entertain Osborne's due process
claim premised on the failure of the trial court to charge the
"lewd exhibition" and "graphic focus" elements does not depend upon
his objection to this failure at trial.
Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS
join, dissenting.
I agree with the Court that appellant's conviction must be
reversed. I do not agree, however, that Ohio is free on remand to
retry him under Ohio Rev.Code Ann. § 2907.323(A)(3) (Supp.1989) as
it currently exists. In my view, the state law, even as construed
authoritatively by the Ohio Supreme Court, is still fatally
overbroad, and our decision in
Stanley v. Georgia,
394 U. S. 557
(1969), prevents the State from criminalizing appellant's
possession of the photographs at issue in this case. I therefore
respectfully dissent.
I
A
As written, the Ohio statute is plainly overbroad. Section
2907.323(A)(3) makes it a crime to "[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." Another section defines "nudity" as
"the showing, representation, or depiction of human male or
female genitals, pubic area, or buttocks with less than a full,
opaque covering, or of a female breast with less than a full opaque
covering of any portion thereof
Page 495 U. S. 127
below the top of the nipple, or of covered male genitals in a
discernibly turgid state."
Ohio Rev. Code Ann. § 2907.01(H) (Supp.1989). In short, §§
2907.323 and 2907.01(H) use simple nudity, without more, as a way
of defining child pornography. [
Footnote 2/1] But, as our prior decisions have made
clear, "
nudity alone' does not place otherwise protected
material outside the mantle of the First Amendment." Schad v.
Mount Ephraim, 452 U. S. 61,
452 U. S. 66
(1981) (quoting Jenkins v. Georgia, 418 U.
S. 153, 418 U. S. 161
(1974)); see also FW/PBS, Inc. v. City of Dallas,
493 U. S. 215,
493 U. S. 224
(1990) (plurality opinion); id. at 493 U. S. 238,
n. 1 (BRENNAN, J., concurring in judgment); Doran v. Salem Inn,
Inc., 422 U. S. 922,
422 U. S.
932-933 (1975); Southeastern Promotions, Ltd. v.
Conrad, 420 U. S. 546,
420 U. S.
557-558 (1975); California v. LaRue,
409 U. S. 109,
409 U. S. 118
(1972). In Erznoznik v. City of Jacksonville, 422 U.
S. 205, 422 U. S. 213
(1975), for example, we invalidated a statute that
"would [have] bar[red] a film containing a picture of a baby's
buttocks, the nude body of a war victim, or scenes from a culture
in which nudity is indigenous. The ordinance also might [have]
prohibit[ed] newsreel scenes of the opening of an art exhibit as
well as shots of bathers on a beach."
The Ohio law as written has the same broad coverage, and is
similarly unconstitutional. [
Footnote
2/2]
Page 495 U. S. 128
B
Wary of the statute's use of the "nudity" standard, the Ohio
Supreme Court construed § 2907.323(A)(3) to apply only "where such
nudity constitutes a lewd exhibition or involves a graphic focus on
the genitals."
State v. Young, 37 Ohio St.3d 249, 252, 525
N.E.2d 1363, 1368 (1988). The "lewd exhibition" and "graphic focus"
tests not only fail to cure the overbreadth of the statute, but
they also create a new problem of vagueness.
1
The Court dismisses appellant's overbreadth contention in a
single cursory paragraph. Relying exclusively on our previous
decision in
New York v. Ferber, 458 U.
S. 747 (1982), [
Footnote
2/3]
Page 495 U. S. 129
the majority reasons that the "lewd exhibition" standard
adequately narrows the statute's ambit because "[w]e have upheld
similar language against overbreadth challenges in the past."
Ante at
495 U. S. 114.
The Court's terse explanation is unsatisfactory, since
Ferber involved a law that differs in crucial respects
from the one here.
The New York law at issue in
Ferber criminalized the
use of a child in a "
[s]exual performance,'" defined
as "`any performance or part thereof which includes sexual conduct
by a child less than sixteen years of age.'" 458 U.S. at
458 U. S. 751
(quoting N.Y.Penal Law § 263.00(1) (McKinney 1980)). "`"Sexual
conduct"'" was in turn defined as "`actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the
genitals.'" 458 U.S. at 458 U. S. 751
(quoting § 263.00(3)). Although we acknowledged that "nudity,
without more[,] is protected expression," id. at
458 U. S. 765,
n. 18, we found that the statute was not overbroad because only "a
tiny fraction of materials within the statute's reach" was
constitutionally protected. Id. at 458 U. S. 773;
see also id. at 458 U. S. 776
(BRENNAN, J., concurring in judgment). We therefore upheld the
conviction of a bookstore proprietor who sold films depicting young
boys masturbating.
The Ohio law is distinguishable for several reasons. First, the
New York statute did not criminalize materials with a "
graphic
focus" on the genitals, and, as discussed further below,
Ohio's "graphic focus" test is impermissibly capacious. Even
setting aside the "graphic focus" element, the Ohio Supreme Court's
narrowing construction is still overbroad, because it focuses on
"lewd exhibitions of
nudity," rather than "lewd
exhibitions of
the genitals" in the context of
sexual
conduct, as in the New York statute at issue in
Ferber. [
Footnote 2/4]
Page 495 U. S. 130
Ohio law defines "nudity" to include depictions of pubic areas,
buttocks, the female breast, and covered male genitals "in a
discernibly turgid state," as well as depictions of the genitals.
On its face, then, the Ohio law is much broader than New
York's.
In addition, whereas the Ohio Supreme Court's interpretation
uses the "lewd exhibition of nudity" test standing alone, the New
York law employed the phrase "
lewd exhibition of
Page 495 U. S.
131
the genitals'" in the context of a longer list of examples
of sexual conduct: "`actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation, [and]
sado-masochistic abuse.'" 458 U.S. at 458 U. S. 751.
This syntax was important to our decision in Ferber. We
recognized the potential for impermissible applications of the New
York statute, see id. at 458 U. S. 773,
but in view of the examples of "sexual conduct" provided by the
statute, we were willing to assume that the New York courts would
not
"widen the
possibly invalid reach of the statute by
giving an expansive construction to the proscription on 'lewd
exhibition[s] of the genitals.'"
Ibid. (emphasis added). In the Ohio statute, of course,
there is no analog to the elaborate definition of "sexual conduct"
to serve as a similar limit. Hence, while the New York law could be
saved at least in part by the notion of
ejusdem generis,
see 2A C. Sands, Sutherland on Statutory Construction § 47.17,
p. 166 (4th ed. 1984), the Ohio Supreme Court's construction of its
law cannot.
Indeed, the broad definition of nudity in the Ohio statutory
scheme means that "child pornography" could include any photograph
depicting a "lewd exhibition" of even a small portion of a minor's
buttocks or any part of the female breast below the nipple.
Pictures of topless bathers at a Mediterranean beach, of teenagers
in revealing dresses, and even of toddlers romping unclothed, all
might be prohibited. [
Footnote 2/5]
Furthermore,
Page 495 U. S. 132
the Ohio law forbids not only depictions of nudity
per
se, but also depictions of the buttocks, breast, or pubic area
with less than a "full, opaque covering." Thus, pictures of fashion
models wearing semitransparent clothing might be illegal, [
Footnote 2/6] as might a photograph
depicting a fully clad male that nevertheless captured his genitals
"in a discernibly turgid state." The Ohio statute thus sweeps in
many types of materials that are not "child pornography" as we used
that term in
Ferber, but rather that enjoy full First
Amendment protection.
It might be objected that many of these depictions of nudity do
not amount to "lewd exhibitions." But in the absence of
any authoritative definition of that phrase by the Ohio
Supreme Court, we cannot predict which ones. Many would
characterize a photograph of a seductive fashion model or
alluringly posed adolescent on a topless European beach as "lewd,"
although such pictures indisputably enjoy constitutional
protection. Indeed, some might think that
any nudity,
especially that involving a minor, is by definition "lewd," yet
this Court has clearly established that nudity is not excluded
Page 495 U. S. 133
automatically from the scope of the First Amendment. The Court
today is unable even to hazard a guess as to what a "lewd
exhibition" might mean; it is forced to rely entirely on an
inapposite case --
Ferber -- that simply did not discuss,
let alone decide, the central issue here.
The Ohio Supreme Court provided few clues as to the meaning of
the phrase "lewd exhibition of nudity." The court distinguished
"child pornography" from "obscenity,"
see 37 Ohio St.3d at
257, 525 N.E.2d at 1372, thereby implying that it did not believe
that an exhibition was required to be "obscene" in order to qualify
as "lewd." [
Footnote 2/7] But it
supplied no authoritative definition -- a disturbing omission in
light of the absence of the phrase "lewd exhibition" from the
statutory definition section of the Sex Offenses chapter of the
Ohio Revised Code.
See § 2907.01. [
Footnote 2/8] In fact, the word
Page 495 U. S. 134
"lewd" does not appear in the statutory definition of any crime
involving obscenity or other sexually oriented materials in the
Ohio Revised Code.
See §§ 2907.31-2907.35.
Page 495 U. S. 135
Thus, when the Ohio Supreme Court grafted the "lewd exhibition"
test onto the definition of nudity, it was venturing into uncharted
territory. [
Footnote 2/9]
Moreover, there is no longstanding, commonly understood
definition of "lewd" upon which the Ohio Supreme Court's
construction might be said to draw that can save the "lewd
exhibition" standard from impermissible vagueness. [
Footnote 2/10] At
Page 495 U. S. 136
common law, the term "lewd" included "any gross indecency so
notorious as to tend to corrupt community morals,"
Collins v.
State, 160 Ga.App. 680, 682,
288 S.E.2d
43, 45 (1981), an approach that was "subjective" and dependent
entirely on a speaker's "social, moral, and cultural bias."
Moryan v. Detroit, 389 F.
Supp. 922, 930 (ED Mich. 1975). [
Footnote 2/11] Not surprisingly, States with long
experience in applying indecency laws have learned that the word
"lewd" is "too indefinite and uncertain to be enforceable."
Courtemanche v. State, 507
S.W.2d 545, 546 (Tex.Cr.App.1974).
See also Attwood v.
Purcell, 402 F.
Supp. 231, 235 (Ariz.1975);
District of Columbia v.
Walters, 319
A.2d 332, 335-336 (D.C.1974). The term is often defined by
reference to such pejorative synonyms as "
lustful, lascivious,
unchaste, wanton, or loose in morals and conduct.'" People v.
Williams, 59 Cal. App. 3d
225, 229, 130 Cal. Rptr. 460, 462 (1976). But "the very phrases
and synonyms through which meaning is purportedly ascribed serve to
obscure rather than clarify." State v.
Kueny, 215 N.W.2d 215,
217 (Iowa 1974).
"To instruct the jury that a 'lewd or dissolute' act is one
which is morally 'loose,' or 'lawless,' or 'foul' piles additional
uncertainty
Page 495 U. S. 137
upon the already vague words of the statute. In short, vague
statutory language is not rendered more precise by defining it in
terms of synonyms of equal or greater uncertainty."
Pryor v. Municipal Court for Los
Angeles, 25 Cal. 3d
238, 249, 158 Cal. Rptr. 330, 336, 599 P.2d 636, 642
(1979).
The Ohio Supreme Court, moreover, did not specify the
perspective from which "lewdness" is to be determined. A
"reasonable" person's view of "lewdness"? A reasonable pedophile's?
An "average" person applying contemporary local community
standards? Statewide standards? Nationwide standards?
Cf. Sable
Communications of California, Inc. v. FCC, 492 U.
S. 115,
492 U. S.
133-134 (1989);
Pope v. Illinois, 481 U.
S. 497,
481 U. S.
500-501 (1987);
Pinkus v. United States,
436 U. S. 293,
436 U. S.
302-303 (1978);
Smith v. United States,
431 U. S. 291,
431 U. S. 300,
n. 6 (1977);
Miller v. California, 413 U. S.
15,
413 U. S. 24
(1973);
Mistakin v. New York, 383 U.
S. 502,
383 U. S. 508
(1966). In sum, the addition of a "lewd exhibition" standard does
not narrow adequately the statute's reach. If anything, it creates
a new problem of vagueness, affording the public little notice of
the statute's ambit and providing an avenue for "
policemen,
prosecutors, and juries to pursue their personal predilections.'"
Kolender v. Lawson, 461 U. S. 352,
461 U. S. 358
(1983) (quoting Smith v. Goguen, 415 U.
S. 566, 415 U. S. 575
(1974)); see also Houston v. Hill, 482 U.
S. 451, 482 U. S. 465,
and n. 15 (1987). [Footnote 2/12]
Given the important First Amendment interests
Page 495 U. S. 138
at issue, the vague, broad sweep of the "lewd exhibition"
language means that it cannot cure § 2907.323(A)(3)'s
overbreadth.
2
The Ohio Supreme Court also added a "graphic focus" element to
the nudity definition. This phrase, a stranger to obscenity
regulation, suffers from the same vagueness difficulty as "lewd
exhibition." Although the Ohio Supreme Court failed to elaborate
what a "graphic focus" might be, the test appears to involve
nothing more than a subjective estimation of the centrality or
prominence of the genitals in a picture or other representation.
Not only is this factor dependent on the perspective and
idiosyncrasies of the observer, it also is unconnected to whether
the material at issue merits constitutional protection. Simple
nudity, no matter how prominent or "graphic," is within the bounds
of the First Amendment. Michelangelo's "David" might be said to
have a "graphic focus" on the genitals, for it plainly portrays
them in a manner unavoidable to even a casual observer. Similarly,
a painting of a partially clad girl could be said to involve a
"graphic focus," depending on the picture's lighting and emphasis,
[
Footnote 2/13] as could the
depictions of nude children on the friezes that adorn our
Courtroom. Even a photograph of a child running naked on the beach
or playing in the bathtub might run afoul of the law, depending on
the focus and camera angle.
In sum, the "lewd exhibition" and "graphic focus" tests are too
vague to serve as any workable limit. Because the statute,
Page 495 U. S. 139
even as construed authoritatively by the Ohio Supreme Court, is
impermissibly overbroad, I would hold that appellant cannot be
retried under it. [
Footnote
2/14]
II
Even if the statute was not overbroad, our decision in
Stanley v. Georgia, 394 U. S. 557
(1969), forbids the criminalization of appellant's private
possession in his home of the materials at issue.
"If the First Amendment means anything, it means that the State
has no business telling a man, sitting alone in his own house, what
books he may read or what films he may watch."
Id. at
394 U. S. 565.
Appellant was convicted for possessing four photographs of nude
minors, seized from a desk drawer in the bedroom of his house
during a search executed pursuant to a warrant. Appellant testified
that he had been given the pictures in his home by a friend. There
was no evidence that the photographs had been produced commercially
or distributed. All were kept in an album that appellant had
assembled for his personal use, and had possessed privately for
several years.
In these circumstances, the Court's focus on
Ferber
rather than
Stanley is misplaced.
Ferber held
only that child pornography is "a category of material the
production and
distribution of which is not
entitled to First Amendment protection," 458 U.S. at
458 U. S. 765
(emphasis added); our decision did not extend to private
possession. The authority of a State to regulate the
production and distribution of such materials is
Page 495 U. S. 140
not dispositive of its power to penalize possession. [
Footnote 2/15] Indeed, in
Stanley, we assumed that the films at issue were obscene,
and that their production, sale, and distribution thus could have
been prohibited under our decisions.
See 394 U.S. at
394 U. S. 559,
n. 2. Nevertheless, we reasoned that, although the States "retain
broad power to regulate obscenity" -- and child pornography as well
-- "that power simply does not extend to mere possession by the
individual in the privacy of his own home."
Id. at
394 U. S. 568.
Ferber did nothing more than place child pornography on
the same level of First Amendment protection as
obscene
adult pornography, meaning that its production and distribution
could be proscribed. The distinction established in
Stanley between
what materials may be regulated
and
how they may be regulated still stands.
See United
States v. Miller, 776 F.2d 978, 980, n. 4 (CA11 1985) (per
curiam);
People v. Keyes, 135 Misc.2d 993, 995, 517
N.Y.S.2d 696, 698 (1987). As Justice WHITE remarked in a different
context,
"[t]he personal constitutional rights of those like
Stanley to possess and read obscenity in their homes and
their freedom of mind and thought do not depend on whether the
materials are obscene or whether obscenity is constitutionally
protected. Their rights to have and view that material in private
are independently saved by
Page 495 U. S. 141
the Constitution."
United States v. Reidel, 402 U.
S. 351,
402 U. S. 356
(1971).
The Court today finds
Stanley inapposite on the ground
that
"the interests underlying child pornography prohibitions far
exceed the interests justifying the Georgia law at issue in
Stanley."
Ante at
495 U. S. 108.
The majority's analysis does not withstand scrutiny. [
Footnote 2/16] While the sexual
exploitation of children is undoubtedly a serious problem, Ohio may
employ other weapons to combat it. Indeed, the State already has
enacted a panoply of laws prohibiting the creation, sale, and
distribution of child pornography and obscenity involving minors.
See 495
U.S. 103fn2/1|>n. 1,
supra. Ohio has not
demonstrated why these laws are inadequate, and why the State must
forbid mere possession as well.
The Court today speculates that Ohio
"will decrease the production of child pornography if it
penalizes those who
Page 495 U. S. 142
possess and view the product, thereby decreasing demand."
Ante at
495 U. S.
109-110. Criminalizing possession is thought necessary
because,
"since the time of our decision in
Ferber, much of the
child pornography market has been driven underground; as a result,
it is now difficult, if not impossible, to solve the child
pornography problem by only attacking production and
distribution."
Ante at
495 U. S.
110-111. As support, the Court notes that 19 States have
"found it necessary" to prohibit simple possession.
Ibid.
Even were I to accept the Court's empirical assumptions, [
Footnote 2/17] I would find the
Court's
Page 495 U. S. 143
approach foreclosed by
Stanley, which rejected
precisely the same contention Ohio makes today:
"[W]e are faced with the argument that prohibition of possession
of obscene materials is a necessary incident to statutory schemes
prohibiting distribution. That argument is based on alleged
difficulties of proving an intent to distribute or in producing
evidence of actual distribution. We are not convinced that such
difficulties exist, but even if they did, we do not think that they
would justify infringement of the individual's right to read or
observe what he pleases. Because that right is so fundamental to
our scheme of individual liberty, its restriction may not be
justified by the need to ease the administration of otherwise valid
criminal laws."
394 U.S. at
394 U. S.
567-568.
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. [
Footnote 2/18] While I share the
majority's
Page 495 U. S. 144
concerns, I do not believe that it has struck the proper balance
between the First Amendment and the State's interests, especially
in light of the other means available to Ohio to
Page 495 U. S. 145
protect children from exploitation and the State's failure to
demonstrate a causal link between a ban on possession of child
pornography and a decrease in its production. [
Footnote 2/19] "The existence of the State's power
to prevent the distribution of obscene matter" -- and of child
pornography -- "does not mean that there can be no constitutional
barrier to any form of practical exercise of that power."
Smith
v. California, 361 U. S. 147,
361 U. S. 155
(1959).
III
Although I agree with the Court's conclusion that appellant's
conviction must be reversed because of a violation of due process,
I do not subscribe to the Court's reasoning regarding the adequacy
of appellant's objections at trial.
See ante at
495 U. S.
122-125. The majority determines that appellant's due
process rights were violated because the jury was not instructed
according to the interpretation of § 2907.323(A)(3) adopted by the
Ohio Supreme Court on appeal. That is to say, the jury was not told
that
"the State must prove both scienter and that the defendant
possessed material depicting a lewd exhibition or a graphic focus
on genitals."
Ante at
495 U. S. 123.
The Court finds that appellant's challenge to the trial court's
failure to charge the "lewd exhibition" and "graphic focus"
elements is properly before us, because appellant objected at trial
to the overbreadth of § 2907.323(A)(3).
See
Page 495 U. S.
146
ante at
495 U. S.
123-124. I agree with the Court's conclusion that we may
reach the merits of appellant's claim on this point. [
Footnote 2/20]
But the Court does not rest there. Instead, in what is
apparently dictum, given its decision to reverse appellant's
conviction on the basis of the first due process claim, the Court
maintains that a separate due process challenge by appellant
arising from the Ohio Supreme Court's addition of a scienter
element is procedurally barred, because appellant failed to object
at trial to the absence of a scienter instruction. The Court
maintains that § 2907.323(A)(3) must be interpreted in light of §
2901.21(B) of the Ohio Revised Code, which provides that
recklessness is the appropriate
mens rea where a statute
"
neither specifies culpability nor plainly indicates a purpose
to impose strict liability.'" Ante at 495 U. S. 113,
n. 9, and
Page 495 U. S. 147
495 U. S.
122-123. I cannot agree with this gratuitous aspect of
the Court's reasoning.
First, the overbreadth contention voiced by appellant must be
read as fairly encompassing an objection both to the lack of an
intent requirement and to the definition of "nudity." Appellant
objected to,
inter alia, the criminalization of the "mere
possession or viewing of a photograph," without the need for the
State to show additional elements. Tr. 4. A natural inference from
this language is that intent is one of the additional elements that
the State should have been required to prove. There is no need to
demand any greater precision from a criminal defendant, and, in my
judgment, the overbreadth challenge was sufficient, as a matter of
federal law, to preserve the due process claim arising from the
addition of a scienter element. As the majority acknowledges, our
decision in
Ferber mandated that "prohibitions on child
pornography include some element of scienter."
Ante at
495 U. S. 115
(citing
Ferber, 458 U.S. at
458 U. S.
765). In
Ferber, we recognize that adding an
intent requirement was part of the process of narrowing an
otherwise overbroad statute, and appellant's contention that the
statute was overbroad should be interpreted in that light. I find
the Ohio Supreme Court's logic internally contradictory: in one
breath, it adopted a scienter requirement of recklessness to narrow
the statute in response to appellant's overbreadth challenge, and
then, in the next breath, it insisted that appellant had failed to
object to the lack of a scienter element.
Second, even if appellant had failed to object at trial to the
failure of the jury instructions to include a scienter element, I
cannot agree with the reasoning of the Ohio Supreme Court,
unquestioned by the majority today, that "the omission of the
element of recklessness [did] not constitute plain error." 37 Ohio
St.3d at 254, 525 N.E.2d at 1370. To the contrary, a judge's
failure to instruct the jury on every element of an offense
violates a "
bedrock, "axiomatic and elementary"
[constitutional] principle,'" Francis v.
Franklin, 471 U.S.
Page 495 U. S. 148
307,
471 U. S. 313
(1985) (quoting
In re Winship, 397 U.
S. 358,
397 U. S. 363
(1970)), and is cognizable on appeal as plain error.
Cf.
Carella v. California, 491 U. S. 263,
491 U. S.
268-269 (1989) (SCALIA, J., concurring in judgment);
Rose v. Clark, 478 U. S. 570,
478 U. S. 580,
n. 8 (1986);
Connecticut v. Johnson, 460 U. S.
73,
460 U. S. 85-86
(1983) (plurality opinion);
Jackson v. Virginia,
443 U. S. 307,
443 U. S. 320,
n. 14 (1979).
"[W]here the error is so fundamental as not to submit to the
jury the essential ingredients of the only offense on which the
conviction could rest, . . . it is necessary to take note of it on
our own motion."
Screws v. United States, 325 U. S.
91,
325 U. S. 107
(1945) (plurality opinion).
Thus, I would find properly before us appellant's due process
challenge arising from the addition of the scienter element, as
well as his claim stemming from the creation of the "lewd
exhibition" and "graphic focus" tests.
IV
When speech is eloquent and the ideas expressed lofty, it is
easy to find restrictions on them invalid. But were the First
Amendment limited to such discourse, our freedom would be sterile
indeed. 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. I
respectfully dissent.
[
Footnote 2/1]
Other provisions of Ohio law relating to child pornography are
not phrased in terms of "nudity." For example, Ohio Rev.Code Ann. §
2907.321 (Supp.1989) prohibits the knowing creation, sale,
distribution, or possession of "obscenity involving a minor." Ohio
Rev.Code Ann. § 2907.322 (Supp.1989) prohibits the knowing
creation, sale, distribution, or possession of materials depicting
a minor engaging in "sexual activity" (defined as "sexual conduct
or sexual contact,"
see §§ 2907.01(A), (B), (C)),
masturbation, or bestiality. The documented harm from child
pornography arises chiefly from the type of
obscene
materials that would be punished under these provisions, rather
than from the depictions of mere "nudity" that are criminalized in
§ 2907.323.
See New York v. Ferber, 458 U.
S. 747,
458 U. S. 779,
n. 4 (1982) (STEVENS, J., concurring in judgment).
[
Footnote 2/2]
The Court hints that § 2907.323's exemptions and "proper
purposes" provisions might save it from being overbroad.
See
ante at
495 U. S. 112.
I disagree. The enumerated "proper purposes" (
e.g., a
"bona fide artistic, medical, scientific, educational . . . or
other proper purpose") are simultaneously too vague and too narrow.
What is an acceptable "artistic" purpose? Would erotic art along
the lines of Robert Mapplethorpe's qualify? What is a valid
"scientific" or "educational" purpose? What about sex manuals?
See, e.g., Faloona v. Hustler Magazine,
Inc., 607 F.
Supp. 1341 (ND Tex.1985),
aff'd, 799 F.2d 1000 (CA5
1986). What is a permissible "other proper purpose"? What about
photos taken for one purpose and recirculated for other, more
prurient purposes? The "proper purposes" standard appears to create
problems analogous to those this Court has encountered in
describing the "redeeming social importance" of obscenity.
See
Pope v. Illinois, 481 U. S. 497,
481 U. S.
500-501 (1987);
id. at
481 U. S.
513-519 (STEVENS, J., dissenting);
Smith v. United
States, 431 U. S. 291,
431 U. S.
319-321 (1977) (STEVENS, J., dissenting);
Paris
Adult Theatre I v. Slaton, 413 U. S. 49,
413 U. S. 84-85
(1973) (BRENNAN, J., dissenting);
Miller v. California,
413 U. S. 15,
413 U. S. 24
(1973),
Memoirs v. Attorney General of Massachusetts,
383 U. S. 413,
383 U. S. 418
(1966) (plurality opinion);
Roth v. United States,
354 U. S. 476,
354 U. S.
484-485 (1957).
At the same time, however, Ohio's list of "proper purposes" is
too limited; it excludes such obviously permissible uses as the
commercial distribution of fashion photographs or the simple
exchange of pictures among family and friends. Thus, a neighbor or
grandparent who receives a photograph of an unclothed toddler might
be subject to criminal sanctions.
[
Footnote 2/3]
Although the phrase "lewd exhibition of the genitals" was
offered as an example of a permissible regulation in
Miller v.
California, supra, 413 U.S. at
413 U. S. 25, it
was mentioned in the Court's treatment of a
vagueness
question. Even then, the phrase was prefaced with the words
"[p]atently offensive representations or descriptions,"
ibid., and included in a list with other types of sexual
conduct that served to limit its scope.
[
Footnote 2/4]
The Court maintains that
"[t]he context of the opinion indicates that the Ohio Supreme
Court believed that "the term
nudity,' as used in R.C.
2907.323(A)(3), refers to a `lewd exhibition' of the genitals."
State v. Young, 37 Ohio St.3d 249, 258, 525 N.E.2d 1363,
1373 (1988)."
Ante at
495 U. S. 115,
n. 11. The passage cited (and quoted in part) by the Court,
however, is a description of appellant's objections at trial and
his argument on appeal, not a precise formulation by the Ohio
Supreme Court of the "lewd exhibition" test. Indeed, only two
sentences after the quotation cited by the majority, the Ohio court
referred to "lewdness [a]s an element of
nudity under R.C.
2907.323(A)(3)." 37 Ohio St.3d at 258, 525 N.E.2d at 1373 (emphasis
added). Earlier in its opinion, the Ohio Supreme Court more
carefully articulated its construction of the statute, and stated
that § 2907.323(A)(3) criminalizes depictions of nudity "where such
nudity constitutes a lewd exhibition or involves a graphic focus on
the genitals." 37 Ohio St.3d at 252, 525 N.E.2d at 1368. It is on
this portion of the opinion that I rely.
The Ohio Supreme Court did not say, "[W]here such nudity
constitutes a lewd exhibition
of or involves a graphic
focus on the genitals." The noun "exhibition" does not take as a
modifier the preposition "on," and the court's repeated reference
to the "prohibited state of nudity" as "a lewd exhibition or a
graphic focus on the genitals," 37 Ohio St.3d at 251, 525 N.E.2d at
1367, leaves no doubt that its choice of words was deliberate. The
Ohio court clearly meant the "lewd exhibition" standard to pertain
only to nudity, and not to displays of the genitals.
See also
ibid. (referring to "morally innocent states of nudity as well
as lewd exhibitions").
But were the Court today correct that the Ohio Supreme Court
intended to create a "
lewd exhibition' of the genitals" test, I
would hardly be reassured. Indeed, such a confused approach by the
Ohio Supreme Court, referring in one part of its opinion to "lewd
exhibitions of nudity" and in another to "lewd exhibitions
of the genitals," would create a great deal of uncertainty
regarding the scope of § 2907.323(A)(3), and likely would render
that statute void for vagueness. We of course are powerless to
clarify or elaborate on the interpretation of Ohio law provided by
the state court. See Freedman v. Maryland, 380 U. S.
51, 380 U. S. 60-61
(1965).
[
Footnote 2/5]
The majority concedes that,
"[i]f, for example, a parent gave a family friend a picture of
the parent's infant taken while the infant was unclothed, the
statute would apply."
Ante at
495 U. S. 113,
n. 9. To provide another disturbing illustration: A well-known
commercial advertisement for a suntan lotion shows a dog pulling
down the bottom half of a young girl's bikini, revealing a stark
contrast between her suntanned back and pale buttocks. That this
advertisement might be illegal in Ohio is an absurd, yet altogether
too conceivable, conclusion under the language of the statute.
"Many of the world's great artists -- Degas, Renoir, Donatello,
to name a few -- have worked from models under 18 years of age, and
many acclaimed photographs and films have included nude or
partially clad minors."
Massachusetts v. Oakes, 491 U.
S. 576,
491 U. S. 593
(1989) (BRENNAN, J., dissenting). In addition, there is an
"abundance of baby and child photographs taken every day without
full frontal covering, not to mention the work of artists and
filmmakers and nudist family snapshots."
Id. at
491 U. S. 598
(BRENNAN, J., dissenting);
see also State v. Schmakel, No.
L-88-300, 1989 WL 119926 (Ohio Ct.App., Oct. 13, 1989), pp. 10-11
("a parent photographing his naked toddler on a bear rug would be
threatened with a prison term . . . even though parents ostensibly
have the same interests in taking those pictures as they do in
keeping a journal or gloating about their children's
accomplishments"). None of these examples involves "sexual
conduct,"
Ferber, 458 U.S. at
458 U. S. 765,
yet all might be unlawful under the Ohio statute.
[
Footnote 2/6]
Cf. Steffens v. State, 343 So. 2d 90, 91 (Fla.App.
1977) (invalidating as impermissibly vague ordinance that
prohibited "female waitresses, entertainers or other employees of a
public business" from appearing with their breasts "thinly covered
by mesh, transparent net or lawn skin-tight materials which are
flesh-colored and worn skin-tight, so as to appear uncovered, "on
the ground that, "[i]n view of the scanty female apparel which is
now socially acceptable in public, particularly on beaches, the
description of the type of clothing forbidden by this ordinance is
extremely unclear").
[
Footnote 2/7]
Other courts have found it necessary to equate "lewd" with
"obscene" in order to avoid overbreadth and vagueness problems.
See, e.g., United States v. 12,200-Ft. Reels of Super 8 mm
Film, 413 U. S. 123,
413 U. S. 130,
n. 7 (1973); Donnenberg v. State, 1 Md.App. 591, 597,
232 A.2d 264, 267 (1967) ("lewd" and "indecent" equivalent to
"obscene"; "[o]therwise the words would be too vague to constitute
a permissible standard in a criminal statute");
State ex rel.
Cahalan v. Diversified Theatrical Corp., 59 Mich.App. 223,
232-233, 229 N.W.2d 389, 393 (1975);
Seattle v.
Marshall, 83 Wash. 2d
665, 672,
521 P.2d
693, 697 (1974);
State v. Voshart, 39 Wis.2d 419,
429-431,
159 N.W.2d
1, 6-7 (1968). But the Ohio Supreme Court specifically rejected
this path.
In my judgment, even equating "lewd" with "obscene" would not
adequately clarify matters, because
"the concept of 'obscenity' cannot be defined with sufficient
specificity and clarity to provide fair notice to persons who
create and distribute sexually oriented materials, to prevent
substantial erosion of protected speech as a byproduct of the
attempt to suppress unprotected speech, and to avoid very costly
institutional harms."
Paris Adult Theatre I v. Slaton, 413 U.S. at
413 U. S. 103
(BRENNAN, J., dissenting);
see also Sable Communications of
California, Inc. v. FCC, 492 U. S. 115,
492 U. S.
133-134 (1989) (BRENNAN, J., concurring in part and
dissenting in part);
Pope v. Illinois, 481 U.
S. 497,
481 U. S. 507
(1987) (BRENNAN, J., dissenting);
id. at
481 U. S.
513-518 (STEVENS, J., dissenting).
[
Footnote 2/8]
Revised Code § 2905.26(B), which was repealed in 1974, defined
"lewdness" somewhat unhelpfully as "any indecent or obscene act."
As it now reads, the Sex Offenses chapter of the Ohio Revised Code
is remarkably
devoid of any use of the term "lewd." The
crime of "importuning," for example, is defined as the solicitation
to engage in "sexual activity" or "sexual conduct." Ohio Rev.Code
Ann. § 2907.07 (1975). "Public indecency" comprises "expos[ing
one's] private parts," "engag[ing] in masturbation," "engag[ing] in
sexual conduct," or "engag[ing] in conduct which to an ordinary
observer would appear to be sexual conduct or masturbation." §
2907.09. "Prostitution" is described as engaging in "sexual
activity for hire." Ohio Rev.Code Ann. §§ 2907.21-2907.26 (1975 and
Supp.1989).
Currently, several sections of the Ohio Revised Code outside the
Sex Offenses chapter contain the term "lewd."
See Ohio
Rev.Code Ann. § 715.52 (1976) ("Any municipal corporation may . . .
[p]rovide for the punishment of all lewd and lascivious behavior in
the streets and other public places"); Ohio Rev.Code Ann. §
3767.01(C) (1988) (defining public "nuisance" as "that which is
defined and declared by statutes to be such and . . . any place in
or upon which lewdness, assignation, or prostitution is conducted,
permitted, continued, or exists, or any place, in or upon which
lewd, indecent, lascivious, or obscene films or plate negatives
[and so on, are exhibited]"); Ohio Rev.Code Ann. § 4715.30(A)
(Supp.1989) (providing that "[t]he holder of a certificate or
license issued under this chapter is subject to disciplinary action
by the state dental board for . . . [e]ngaging in lewd or immoral
conduct in connection with the provision of dental services"); Ohio
Rev. Code Ann. § 4931.31 (1977) ("No person shall, while
communicating with any other person over a telephone, . . . use or
address to such other person any words or language of a lewd,
lascivious, or indecent character, nature, or connotation for the
sole purpose of annoying such other person").
The Ohio Supreme Court did not refer to any of these provisions
in articulating its "lewd exhibition" standard, and they provide
little guidance in deciphering the "lewd exhibition of nudity"
test. Indeed, although the Ohio public nuisance statute, §
3767.01(C), contains the phrase "lewdness, assignation, or
prostitution," it has been interpreted to refer only to conduct or
behavior, and not to photographs and other printed materials.
See Ohio v. Pizza, No. L-88045, 18, 1989 WL 20263 (Ohio
Ct.App., Mar. 10, 1989), p. 18. Thus, Ohio has followed those
States that have determined that "the term
lewdness' does
not apply to persons who sell pornography." Chicago v.
Geraci, 30 Ill.App.3d 699, 704, 332 N.E.2d 487, 492 (1975)
(emphasis added); see also Chicago v. Festival Theatre
Corp., 91 Ill. 2d
295, 302, 63 Ill.Dec. 421, 423424, 438 N.E.2d
159, 161-162 (1982) (noting that various courts have held that
"`lewdness, assignation, or prostitution" abatement statutes are
not applicable to obscene films or books).
[
Footnote 2/9]
Indeed, in other contexts, the Ohio Supreme Court has recognized
the difficulty of defining the term "lewd."
See, e.g., Columbus
v. Rogers, 41 Ohio St.2d 161, 163-165, 324 N.E.2d 563, 565-566
(1975) (holding void for vagueness city ordinance providing that
"
[n]o person shall appear on any public street or other public
place in a state of nudity or in a dress not belonging to his or
her sex, or in an indecent or lewd dress'"); Columbus v.
Schwarzwalder, 39 Ohio St.2d 61, 62-63, 313 N.E.2d 798, 800
(1974) (per curiam) (reversing, on grounds of overbreadth,
convictions under disorderly conduct ordinance that prohibited
"`disturb[ing] the good order and quiet of the city'" and
"`otherwise violat[ing] the public peace by indecent and disorderly
conduct or by lewd or lascivious behavior'"); see also South
Euclid v. Richardson, Nos. 54247, 54248, slip op., 1988 WL
88346 (Ohio Ct.App., Aug. 18, 1988), pp. 1-2 (invalidating as vague
and overbroad municipal ordinance stating that "`no person,
organization, club or association shall own, operate, maintain or
manage a brothel or solicit, invite or entice another to patronize
a brothel or to engage in acts of lewdness or sexual conduct,'" and
that defined "`lewdness'" as "`sexual conduct or relations of such
gross indecency and so notorious as to corrupt community
morals'").
[
Footnote 2/10]
Historically, prohibitions on "lewd" acts grew out of
"the archaic vagrancy statutes which were designedly drafted to
grant police and prosecutors a vague and standardless
discretion."
Pryor v. Municipal Court for Los
Angeles, 25 Cal. 3d
238, 248, 158 Cal. Rptr. 330, 335, 599 P.2d 636, 641 (1979). We
held such vagrancy laws unconstitutionally vague in
Papachristou v. City of Jacksonville, 405 U.
S. 156 (1972).
Cf. Ohio Rev.Code § 715.55
(1976) ("Any municipal corporation may provide for: (A) The
punishment of persons disturbing the good order and quiet of the
municipal corporation by clamors and noises in the night season, by
intoxication, drunkenness, fighting, committing assault, assault
and battery, using obscene or profane language in the streets and
other public places to the annoyance of the citizens, or otherwise
violating the public peace by indecent and disorderly conduct, or
by
lewd or lascivious behavior. (B) The punishment of any
vagrant, common street beggar, common prostitute, habitual
disturber of the peace, known pickpocket, gambler, burglar, thief,
watch stuffer, ball game player, a person who practices any trick,
game, or device with intent to swindle, a person who abuses his
family, and any suspicious person who cannot give a reasonable
account of himself") (emphasis added).
[
Footnote 2/11]
Virtually any act running afoul of "conventional" morality can
be and has been sanctioned under "lewdness" laws.
See, e.g.,
Jelly v. Dabney, 581 P.2d 622,
626 (Wyo.1978) (describing, as punishable under "lewdness"
prohibition, crime of "illicit cohabitation,"
i.e., a
"dwelling or living together by a man and woman, not legally
married to each other, in the manner of husband and wife, and
indulgence in acts of sexual intercourse") (quotation omitted);
Egal v. State, 469 So. 2d 196, 198 (Fla.App.1985)
("
[I]f, forty years ago, either a man or a woman had donned the
apparel popular on our beaches today, . . . such person would
probably have been . . . branded as a lewd, lascivious, and
indecent person'") (quoting State ex rel. Swanboro v.
Mayo, 155 Fla. 330, 332, 19 So. 2d 883, 884 (1944)).
[
Footnote 2/12]
The danger of discriminatory enforcement assumes particular
importance of the context of the instant case, which involves child
pornography with male homosexual overtones. Sadly, evidence
indicates that the overwhelming majority of arrests for violations
of "lewdness" laws involve male homosexuals.
See Pryor,
supra, 25 Cal. 3d at 252, n. 8, 158 Cal. Rptr. at 338, n. 8,
599 P.2d at 644, n. 8.
Cf. Houston v. Hill, 482 U.
S. 451 (1987) (prosecution of male homosexual for
interfering with a police officer in the performance of his
duties); Developments in the Law -- Sexual Orientation and the Law,
102 Harv.L. Rev. 1509, 1537-1538, 1542 (1989).
"Such uneven application of the law is the natural consequence
of a statute which, as judicially construed, measure[s] the
criminality of conduct by community or even individual notions of
what is distasteful behavior."
Pryor, supra, 25 Cal. 3d at 252, 158 Cal. Rptr. at 338,
599 P.2d at 644. The "lewd exhibition" standard
""furnishes a convenient tool for
harsh and discriminatory
enforcement by local prosecuting officials, against particular
groups deemed to merit their displeasure.'""
Kolender v. Lawson, 461 U.S. at
461 U. S. 360
(quoting
Papachristou, 405 U.S. at
405 U. S. 170,
in turn quoting
Thornhill v. Alabama, 310 U. S.
88,
310 U. S. 97-98
(1940)).
[
Footnote 2/13]
Since § 2907.323(A)(3) makes it a crime to "view" as well as to
possess depictions of nudity, visitors to an art gallery might find
themselves in violation of the law.
[
Footnote 2/14]
The scope of § 2907.323(A)(3) is restricted to depictions of "a
minor who is not the person's child or ward." This does not cure
the overbreadth problem, because many constitutionally protected
photographs outlawed by the statute, such as commercial
advertisements and works of art, circulate outside of the subject's
immediate family.
See also ante at
495 U. S. 124
("
Judge, if you had some nude photos of yourself when you were
a child, you would probably be violating the law. . . . So
grandparents, neighbors, or other people who happen to view the
photograph are criminally liable under the statute'") (quoting Tr.
3-4).
[
Footnote 2/15]
The distinction drawn in
Stanley is not an anomaly in
the law; to the contrary, we have often protected expression valued
by listeners, whether or not the source of the communication was
fully entitled to the safeguards of the First Amendment.
See,
e.g., Pacific Cas & Electric Co. v. Public Utilities Comm'n of
California, 475 U. S. 1,
475 U. S. 8 (1986)
(plurality opinion);
Consolidated Edison Co. of New York v.
Public Service Comm'n of New York, 447 U.
S. 530,
447 U. S.
533-534, and n. 1 (1980);
First National Bank of
Boston v. Bellotti, 435 U. S. 765,
435 U. S. 777,
and n. 13 (1978);
Lamont v. Postmaster General,
381 U. S. 301,
307-308 (1965) (BRENNAN, J., concurring). Just as the right of a
listener to receive information does not rest on the right of the
producer to disseminate it, so the power to ban the production and
distribution of child pornography does not imply a concomitant
authority to proscribe mere possession.
[
Footnote 2/16]
Although we held in
Stanley v. Georgia, 394 U.
S. 557 (1969), that "the First and Fourteenth Amendments
prohibit making mere private possession of obscene material a
crime,"
id. at
394 U. S. 568,
we acknowledged that "compelling reasons may exist for overriding
the right of the individual to possess" other types of "printed,
filmed, or recorded materials."
Id. at
394 U. S. 568,
n. 11. The majority's reference to this language as support for its
decision today,
see ante at
495 U. S. 110,
ignores the fact that footnote 11 in
Stanley cited only to
18 U.S.C. § 793(d), which criminalizes possession of defense
information harmful to U.S. national security. To equate child
pornography with state secrets is to read the narrow exception
carved in footnote 11 of
Stanley as swallowing the general
rule that the case established.
See State v. Meadows, No.
C-850091, 1985 WL 4501 (Ohio Ct.App., Dec. 18, 1985) (Doan, J.,
concurring) ("[t]he reservation [in footnote 11 of
Stanley] applies to traitorous or seditious materials, not
to child pornography"),
rev'd, 28 Ohio St.3d 43, 503
N.E.2d 697 (1986),
cert. denied, 480 U.S. 936 (1987);
see also Meadows, 28 Ohio St.3d at 356-357, 503 N.E.2d at
716 (Brown, J. concurring). Although our decisions even in the
First Amendment area have taken special note of the paramount
importance of national security interests,
see, e.g., Near v.
Minnesota ex rel. Olson, 283 U. S. 697,
283 U. S. 716
(1931), we nonetheless have required a strong showing of imminent
danger before permitting First Amendment freedoms to be sacrificed.
See, e.g., New York Times Co. v. United States,
403 U. S. 713,
403 U. S.
726-727 (1971) (BRENNAN, J., concurring).
[
Footnote 2/17]
That 19 States have prohibited possession of child pornography
hardly proves that such an approach is integral to effective
enforcement of production and distribution laws. A restriction on
speech cannot be justified by such self-referential reasoning. In
fact, the difficulty of enforcing possession laws -- for example,
the requirements of probable cause and a warrant before a search
may be undertaken -- means that penalties for possession are
dubious complements to curbs on production, sale, and distribution.
See Note, Private Possession of Child Pornography: The
Tensions Between
Stanley v. Georgia and
New York v.
Ferber, 29 Wm. & Mary L.Rev. 187, 212 (1987) ("Statutory
prohibition of the private possession of child pornography is an
inefficient and ineffective means of preventing the serious problem
of child sexual abuse").
The federal experience illustrates that possession laws are not
an essential element of a successful enforcement strategy. In the
Protection of Children Against Sexual Exploitation Act of 1977,
P.L. 95-225, 92 Stat. 7, Congress prohibited the production,
distribution, and sale of material depicting sexually explicit
conduct by minors.
See 18 U.S.C. §§ 2251-2253 (1982 ed.).
Congress also criminalized the mailing, receipt, or trafficking in
interstate or foreign commerce of such material for the purpose of
sale or distribution for sale.
See 18 U.S.C. § 2252(a)
(1982 ed.). But Congress did
not criminalize mere
possession. In the Child Protection Act of 1984, P.L. 98-292, 98
Stat. 204, Congress enacted a broad revision of the 1977 law
removing the requirement that trafficking, receipt, and mailing be
for the purposes of sale or distribution for sale.
See 18
U.S.C. § 2252(a). Further, the 1984 Act eliminated a requirement
that material be "obscene" before its production, distribution,
sale, mailing, trafficking, and receipt could be found criminal,
see § 2252(a); raised the age limit of protection from 16
to 18 years of age,
see § 2256(1); and added stiffer
penalties,
see § 2252(b), criminal and civil forfeiture
provisions,
see §§ 2253, 2254, and a civil remedy for
personal injuries.
See § 2255. Even in the 1984
amendments, Congress did not find it necessary to ban simple
possession. Nevertheless, the Attorney General's Commission on
Pornography determined that
"the 1977 Act effectively halted the bulk of the commercial
child pornography industry, while the 1984 revisions have enabled
federal officials to move against the noncommercial, clandestine
mutation of that industry."
1 U.S. Dept. of Justice, Attorney General's Commission on
Pornography, Final Report 607 (1986).
[
Footnote 2/18]
The Court briefly identifies two other interests that it
contends justify Ohio's law. First, the majority describes a state
interest in destroying the "permanen[t] record" of the victim's
abuse.
Ante at
495 U. S. 111.
I do not believe that the law is narrowly tailored to this end, for
there is no requirement that the State show that the child was
abused in the production of the materials, or even that the child
knew that a photograph was taken. Even if the State could recover
all copies of the offensive picture, which seems highly unlikely, I
do not see how a candid shot taken without the minor's knowledge
can "haun[t]" him or her in the years to come,
ibid., when
there is no indication that the child is even aware of its
existence. And if the law's purpose is preventing sexual abuse of
children, it is under-inclusive to the extent that it does not
prevent
parents from photographing their children in a
state of nudity,
see, e.g., Massachusetts v. Oakes,
491 U. S. 576
(1989), or giving others written permission to do so.
See,
e.g., Faloona v. Hustler Magazine, Inc., 607 F.
Supp. 1341 (ND Tex. 1985). The only restriction on parents is
the nebulous "proper purposes" provision, which is really no
restriction at all.
See 495
U.S. 103fn2/2|>n. 2,
supra. More fundamentally,
even if the State could presume that minors are legally incompetent
to consent to sexually explicit photographs, and therefore that all
such photographs could be outlawed, it does not follow that the
State can prohibit
possession of such pictures in addition
to their
production. In
Ferber, the Court was
careful to limit its discussion to the "distribution" and
"circulation" of photographs taken without a minor's consent.
See 458 U.S. at
458 U. S. 759
and n. 10;
cf. Butterworth v. Smith, 494 U.
S. 624,
494 U. S.
635-636 (1990);
The Florida Star v. B.J.F.,
491 U. S. 524,
491 U. S.
532-533 (1989);
Smith v. Daily Mail Publishing
Co., 443 U. S. 97,
443 U. S. 103
(1979);
Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469,
420 U. S. 491
(1975). By analogy,
Stanley assuredly protects the private
possession of obscene adult pornography, even though an argument
could be made that "production of adult pornography can be as
harmful to adult actors as the production of child pornography is
to child actors." Note, 29 Wm. & Mary L.Rev.,
supra,
at 204, n. 144;
see also 1 Attorney General's Report,
supra, 495
U.S. 103fn2/16|>n. 16, at 839-900; Pollard, Regulating
Violent Pornography, 43 Vand.L.Rev. 125, 133-134 (1990).
Second, the Court maintains that possession of child pornography
may be prohibited "because evidence suggests that pedophiles use
child pornography to seduce other children into sexual activity."
Ante at
495 U. S. 111
(citing, in a footnote, the Attorney General's Commission on
Pornography). The Attorney General's Commission, however,
determined that pedophiles are likely to use
adult as well
as
child pornography to lower the inhibitions of a child
victim.
See Attorney General's Report,
supra, n.
16, at 686;
see also Brief for Covenant House
et
al., as
Amici Curiae 8, n. 9 (characterizing the
Court's argument on this point as "factual speculation"). Finally,
Ohio's solution -- prohibiting private possession -- ignores
fundamental principles of our First Amendment jurisprudence.
"Assuming obscene material could be proved to create a . . .
danger of illegal behavior, it would not follow that the expression
should be suppressed. Rather, the basic principles of a system of
freedom of expression would require that society deal directly with
the . . . action and leave the expression alone."
T. Emerson The System of Freedom of Expression 494 (1970).
See also Paris Adult Theatre I v. Slaton, 413 U.S. at
413 U. S.
108-110 (BRENNAN, J. dissenting). Thus, while acts of
sexual abuse themselves may be outlawed, the private possession of
photographs, magazines, and other materials may not.
[
Footnote 2/19]
The notion that possession of pornography may be penalized in
order to facilitate a prohibition on its production, whatever the
rights of possessors, is not unlike a proposal that newspaper
subscribers be held criminally liable for receiving the newspaper
if they are aware of the publisher's violations of child labor
laws.
Cf. L. Tribe, American Constitutional Law 915 (2d
ed. 1988). In both cases, sanctions against possession might
increase the effectiveness of concededly permissible regulations on
the production process. But. although the need to protect children
from exploitation may be acute, it cannot override the right to
receive the newspaper or to possess sexually explicit materials in
the privacy of the home, especially when less restrictive
alternatives exist to further the state interests asserted.
[
Footnote 2/20]
The Court's opinion should not be taken to mean that appellant's
due process claim with respect to the "lewd exhibition" and
"graphic focus" elements would be procedurally barred now had he
failed to object at trial. If appellant's due process contention
were nothing more than a complaint concerning the statute's
overbreadth, the suggestion that he would be barred from raising it
now if he failed to object at trial might be plausible. But that is
not appellant's argument. Rather, he maintains that his due process
rights were violated because the Ohio Supreme Court affirmed his
conviction after adding the elements of "lewd exhibition" and
"graphic focus" on appeal, despite the fact that appellant had had
no reason to design a defense strategy or introduce evidence with
these tests in mind. The jury, moreover, might have convicted
appellant purely on the basis of the "nudity" definition, without
deciding whether the materials depicted a "lewd exhibition of
nudity" or involved a "graphic focus" on the genitals. Thus,
appellant's due process claim is separate from his overbreadth
challenge, see
Shuttlesworth v. Birmingham, 382 U. S.
87,
382 U. S. 92
(1965), as even the Court appears to recognize at some places in
its opinion.
See ante at
495 U. S. 121
("Even if construed to obviate overbreadth, applying the statute to
pending cases might be barred by the Due Process Clause"). The due
process violation in this case was not complete until the Ohio
Supreme Court affirmed appellant's conviction after reinterpreting
the statute. Requiring defendants to object at trial to an error
that does not appear until the appellate stage would advance no
legitimate state interest regarding finality or compliance with
state procedures.