Osborne v. Ohio, 495 U.S. 103 (1990)

In Osborne v. Ohio, the United States Supreme Court established the special reasons why child pornography is not subject to any meaningful constitutional protections under the First Amendment (or the Fourteenth Amendment as applied to the states). This case clarified the uncertain scope of the right to possession of obscene material under the First Amendment. This landmark case extensively addressed the sociological data supporting an absolute ban on child pornography, regardless of any individual privacy rights in keeping such obscene material. Not surprisingly, the case is widely quoted by the United States Supreme Court and virtually every other lower court in the country in most cases involving challenges to child pornography criminal statutes.
The issue in the case was relatively straightforward. Writing for the majority, Justice White explained that the primary issue in the case was whether the state of Ohio could proscribe the possession and viewing of child pornography in light of the Supreme Court’s earlier decision in Stanley v. Georgia, 394 U.S. 557 (1969). In that touchstone case, the Court struck down a Georgia law outlawing the private, home possession of obscene material based on the First Amendment. Despite this earlier decision in Stanley, the Court found that possessing and viewing child pornography is uniquely different and therefore not entitled to any constitutional protection.
To begin, Justice White recognized that an earlier decision issued by the Supreme Court had already established that the value of permitting child pornography to exist is “exceedingly modest, if not de minimis” Even accepting the defendant’s argument that he had a First Amendment interest in viewing and possessing child pornography, Justice White found the facts of this case were distinct from the issue in Stanley “because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley” As Justice White explained, “The difference here is obvious: The State does not rely on a paternalistic interest in regulating Osborne’s mind. Rather, Ohio has enacted [its child pornography law] in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.”
To bolster this unique difference, Justice White examined the extensive, uncontested research about the life-altering damage caused to a child by his or her participation in child pornography. He noted that the legislature of Ohio had decided to make child pornography illegal because of its irreparable harm “to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment” (495 U.S. at 109). He also pointed out that crippling the child pornography market necessitated laws targeting all levels of the market, including production, distribution, and possession. He noted that to reduce the supply, it was legitimate for the state to curb the demand by making child pornography highly illegal and subject to extreme penalties. Equally compelling to the decision was the fact that “the material produced by child pornographers permanently record[s] the victim’s abuse. The pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come.” Finally, he noted the sad statistic that pedophiles often encourage and seduce children to participate in child pornography by showing them other works of child pornography. For all of these reasons, the majority found that child pornography laws punishing the mere private possession of such material were constitutionally acceptable. As Justice White phrased it, “Given the gravity of the State’s interest in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography.”
In this case, the individual’s right to privacy was unquestionably different from the situation in Stanley. In the realm of the First Amendment, some types of material or speech are said to be “unprotected” within the meaning of the Constitution. Examples include “fighting words” or “obscenity.” In Stanley, the issue was simply the state’s interest in preventing an adult from reading obscene material in the privacy of his home. The state’s interest was thus considered relatively low, and the individual’s right to absolute privacy in the comfort of his home was deemed enormously high. Ultimately, this case was entirely different based on the critical difference in the type of obscene material. The Supreme Court found a special danger posed by child pornography to the children trapped within its production. This distinction made all the difference in this case, and although the majority seized on a technicality to force the state of Ohio to clarify how it charges defendants under its law, the overall attack on child pornography remained intact. It continues to be quoted extensively in modern cases.