Appellants Brief — Osborne v. Ohio

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NO. 88-5986

IN THE i

Supreme Court of the Anited States

OCTOBER TERM, 1989

—____

CLYDE OSBORNE, Appellant,

STATE OF OHIO, Appellee.

On Appeal From The Supreme Court Of Ohio

BRIEF FOR APPELLANT

RANDALL M. Dana

Ohio Public Defender

S. ADELE SHANK

Assistant Ohio Public Defender

Counsel of Record

Ohio Public Defender Commission

8 East Long Street—11th Floor

Columbus, Ohio 43266-0587

(614) 466-5394

JOHN QUIGLEY

Davip GOLDBERGER

Clinical Programs

The Ohio State University

College of Law

1659 North High Street

: Columbus, Ohio 43210

(614) 292-6821

Counsel for Appellant

ED -

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

“

”

bed

QUESTIONS PRESENTED

I. Whether, where a statute prohibiting possession or

viewing of depictions of nude minors is vague and over-

broad, a state supreme court may re-write the statute to

bring it within constitutional boundaries and then retro-

actively apply the new construction to the defendart in

the case in which the re-writing was done.

Il. Whether a person can, consistent with the consti-

tutional rights of privacy and to receive information, be

convicted for private, in-home possession of photographs

depicting minors in a state of nudity where the nudity

consists of a “lewd exhibition” or “involves a graphic focus

on the genitals.”

III. Whether a person can, consistent with the First

Amendment rights of speech, be convicted for possession

of photographs depicting a nude child, where the statute

as construed by the state supreme court prohibits posses-

sion or viewing of depictions of a nude child that constitute

a “lewd exhibition” or involve a “graphic focus on the

genitals.”

TABLE OF CONTENTS

Qumsreces PREGBSUER. «o.oo ccccccccoccccesccceses

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GCPUGNES BERGE. «oc cccccecccceseucesussunneel

SURMBADUNE « cc cc ccececetecescsecesestenee

STATUTES AND CONSTITUTIONAL PROVISIONS

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STATEMENT OF TH CAGE .. oc cc ccccccccccccccccccees

Sunmeamy OF AMGUBGEMT. ....ccccccccccccccccceccess

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I. A Factatcy INVALID STatTuTE THAT PROSCRIBES

First AMENDMENT Activity Is UNENFORCE-

ABLE AND CANNoT Be ConstTRUED AND THEN

APPLIED To Conpuct WHICH OCCURRED PRIOR

rob: ff. ee

A. Ohio Revised Code Section 2907.323( A)\(3) Was

Unconstitutional On Its Face Due To Its

Infringement Of First Amendment Rights.

Such A Statute Is Invalid And Has No

— And A Conviction Obtained Under It Is

WUE. cococoscconceussanunanee

B. Ohio Revised Code 2907.323(A\(3) Gave No

Fair Warning That It Prohibited The Conduct

Later Identi By The Ohio Supreme Court

As Illegal When It Re-Wrote The Statute In

Bee GGD. sc ccccccéacsunecae

1. A Conviction Under An Invalid Statute

Cannot Be Saved By Re-Writing The Stat-

ute To Meet Constitutional Requirements

And Applying The New Construction

EGGRREEUEER, ccccesccsosceseaneuanel

2. A Conviction May Not Be Based On The

Retroactive Application Of A Statutory

Construction ich Expands Criminal

LAURER, eccocescecceccuusneenel

3. Because Mr. Osborne Has Been Subjected

To A Retroactive Application Of A Stat-

utory Construction ich Added New

Elements To O.R.C. 2907.323(A)(3), His

Conviction Must Be Reversed. ........

Il.

III.

ili

Table of Contents Continued

C. The Ohio Supreme Court Added New Ele-

ments To Ohio Revised Code 2907.323(A)(3)

And Affirmed Mr. Osborne's Conviction On The

Basis Of Them, Even Though Mr. Osborne

Never Had A Hearing On, Or An Opportunity

To Defend Against, Those Elements. .......

THE StaTeE May Nort PROHIBIT PRIVATE PossEs-

sion IN THE Home Or MATERIALS THatT DEPICT

Minors IN A State Or Nupity WHERE THE

Nupbity Consists Or A “LEwp EXHIBITIO..” OR

“INVOLVES A GrRapuHic Focus ON THE GENI-

Dn. ce cccccccccccs

THE State May Nort, CONSISTENT WITH FIRST

AMENDMENT RIGHTS OF SPEECH, PROHIBIT THE

POSSESSION OR ViEWING OF MATERIALS WHICH

Depict Minors IN A State Or Nupity WHERE

THE Nupity Constitutes A “LEwp EXHIBI-

TION” Or INVOLVES “A GRAPHIC Focus ON THE

ENE

A. Depictions Of Child Nudity, Where The Nudity

Constitutes A “Lewd Exhibition” Or “Involves

A Graphic Focus On The Genitals,” Are Pro-

CPR Ucn Geavancecescecsccccces

1. Ohio Revised Code 2907.323(A)(3) Pro-

hibits Possession Or Viewing Of Materials

That Do Not Depict Sexual Conduct. ...

2. Ohio Revised Code 2907.323(A)(3) Pro-

hibits Possession Of Depictions That Are

Not Produced, Distributed Or Possessed

For Commercial Ends. ......... en ae

B. The Ohio Supreme Court’s Construction Of

Ohio Revised Code 2907.323(A)(3) Is Not Nar-

— Tailored To Serve A Compelling State

DUI TEREREBEGG Re SSecccscecccccccceccs

1. Ohio Revised Code 2907.323(A)(3) Does

Not Serve A Compelling State Interest.

2. Ohio Revised Code 2907.323(A)(3) Is Not

Narrowly Tailored To Protect Children.

EE EEE

Page

TABLE OF AUTHORITIES

Cases Page

Ashton v. Kentucky, 384 U.S. 195 (1966)............ 20, 23

Bouie v. Columbia, 378 U.S. 347 (1964). .......... 9, 22, 23

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .......... 37

Calder v. Bull, 3 Dallas 386 (1798) ...............0005. 18

California v. Trombetta, 467 U.S. 479 (1984) .......... 26

Cohen v. California, 403 U.S. 15 (1971). .............. 29

Cole v. Arkansas, 333 U.S. 196 (1948). .............. 9, 27

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)... 37

Crane v. Kentucky, 476 U.S. 683 (1986). .............. 26

De Jonge v. Oregon, 299 U.S. 353 (1987) .............. 26

Dombrowski v. Pfister, 380 U.S. 479 (1965). ...... 20, 21, 23

Erznoznik v. Jacksonville, 422 U.S. 205 (1975) ........ 14

Florida Star v. B. J. F., 491 U.S. ——, 109 S. Ct. 2603

SEA cB 6 nscbceueneaueus kis eeuseeneenaeess 12, 39

Griswold v. Connecticut, 381 U.S. 479 (1965). ......... 29

Kingsley International Pictures Corp. v. Regents of Uni-

versity of New York, 360 U.S. 64 Sssenccess 29

Lovell v. Griffin, 303 U.S. 444 (1938). ............... 14, 15

Marks v. United States, 430 U.S. 188 (1977). ..... 18, 22, 23

Martin v. Struthers, 319 U.S. 141 (1948).............. 29

Massachusetts v. Oakes, 491 U.S. —__, 109 S. Ct. 2633

SN sab eucusuecesuseenseunones 9, 15, 16, 17, 20, 21

Michigan v. Clifford, 464 U.S. 287 (1984)............. 29

Miller v. California, 413 U.S. 15 (1973)............. 22, 30

Miller v. Florida, 482 U.S. 423 (1987) ................ 17

New York v. Ferber, 458 U.S. 747 (1982)............ passim

In Re Oliver, 333 U.S. 257 (1948) ............ 2c eee 26

Organization for a Better Austin v. Keefe, 402 U.S. 415

GEE Susicddsccudacdatnakubesensshcuee sh ueeaes 29

Rabe v. Washington, 405 U.S. 313 (1972)............ 22, 23

Roe v. Wade, 410 U.S. 113 (1973) .................45. 29

Shelton v. Tucker, 364 U.S. 479 (1960). .......... 30, 37, 4

Shuttlesworth v. Birmingham, 382 U.S. 87 (1965).... 20, 27

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969). . passim

Smith v. California, 361 U.S. 147 (1959)... 2.2... 66... 14

Smith, Judge v. Daily Mail Publishing Co., 443 U.S. 97

GED 600 onascsnedsgdednandedewerucnctageeiaal 37

Table of Authorities Continued -

Stanley v. Georgia, 394 U.S. 557 (1969)... 10, 29, 30, 31, 41

Thornhill v. Alabama, 310 U.S. 88 (1940) 9, 15, 16, 17, 21, 26

Washington v. Texas, 388 U.S. 14 (1967).............. 26

Weaver v. Graham, 450 U.S. 24 (1981)................ 17

In Re Winship, 397 U.S. 358 (1970) ..............006. 26

Winters v. New York, 333 U.S. 507 (1948)............. 29

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.

PEIN o venanceseshhenewaekwau ike duces eres 29

CONSTITUTIONAL PROVISIONS

656 odo sade dabdentesctccsseesade 18

First Amendment, United States Constitution ..... passim

Fourth Amendment, United States Constitution....... 29

Sixth Amendment, United States Constitution ........ 26

Fourteenth Amendment, United States Constitution 13, 26, 32

STATUTORY PROVISIONS:

Ohio Revised Code, Section 2901.21.................. 7

Ohio Revised Code, Section 2901.22.................. 7

Ohio Revised Code, Section 2907.01.............. 5, 14, 24

Ohio Revised Code, Section 2907.04.................. 4

Ohio Revised Code, Section 2907.321... 8, 11, 24, 35, 38, 41

Ohio Revised Code, Section 2907.322... 8, 11, 24, 35, 38, 41

Ohio Revised Code, Section 2907.323.............. passim

OPINIONS BELOW

The judgment of the Ohio Supreme Court from which

this appeal is taken is its Rehearing Entry issued August

31, 1988 (Joint Appendix [hereinafter J.A.] 55), wherein it

refused to reconsider its Judgment Entry issued July 6,

1988, by which it affirmed Appellant Clyde Osborne's

conviction. Its Opinion of July 6, 1988, was reported as

State v. Young, 37 Ohio State 3d 249 (1988). (J.A. 37) The

opinion of the Ohio Court of Appeals, styled State v.

Osborne, rendered June 10, 1986 (J.A. 25), was not

reported.

JURISDICTION

The judgment of the Ohio Supreme Court affirming

Appellant’s conviction was entered on July 6, 1988. On

August 31, 1988, the Ohio Supreme Court denied

Appellant’s motion for a re-hearing, and on November 10,

1988, Appellant filed his Notice of Appeal to this Court.

Appellant filed his Jurisdictional Statement on November

14, 1988, and this Court noted probable jurisdiction on

June 16, 1989. Jurisdiction rests on 28 U.S.C. 1257(2),

since Appellant draws into question the constitutionality

of Ohio Revised Code Section 2907.323(A)(3), under

which Appellant is convicted.

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

Ohio Revised Code Section 2907.323(A)(3)

— use of minor in nudity-oriented material or

performances.

(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, dissemi-

nated, rin, my 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 er

purpose, by or to a physician, psychologist

sociologist, scientist, teacher, person pursuing bona

fide studies or research, librarian, clergyman, pros-

ecutor, judge, or other person having a proper inter-

est in the material or performance.

(b) The person knows that the parents, guardian,

or custodian has consented in writing to the pho-

tographing or use of the minor in a state of nudity and

to the manner in which the material or performance

is used or transferred.

FIRST AMENDMENT

Congress shall make no law respecting an establish-

ment of religion, or ——s the free exercise

thereof; or abridging the freedom of speech, or of the

o~, or the right of the people peaceably to assem-

le, and to petition the Government for a redress of

grievances.

FOURTH AMENDMENT

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shail not be violated, and no

Warrants shall issue, but upon probable cause, su

ported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

ave been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

NINTH AMENDMENT

The enumeration in the Constitution, of certain

— shall not be construed to deny or disparage

others retained by the people.

FOURTEENTH AMENDMENT, SECTION I

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

~ life, liberty, or property without due process of

we «

STATEMENT OF THE CASE

As a result of an investigation in Florida, a Jack Smith

allegedly made statements asserting that Appellant

Clyde Osborne was in possession of negatives from illegal

photographs of children. A warrant to search Mr.

Osborne’s home was issued. During the search, police

discovered Mr. Osborne’s personal photograph album in

the drawer of a desk in his bedroom. Upon looking

through the pages of the album, police found on page 12

three Polaroid photographs and one snapshot. (J.A. 8-11,

14-15; R. 52-55, 66) The police arrested Mr. Osborne and

filed a complaint against him for “possess[ing] material

that shows a minor. . . ina state of nudity,” in violation of

Ohio Revised Code Annotated (Page) Section

2907.323(A)(3) (hereinafter O.k.C.). (J.A. 7) Ohio

Revised Code 2907.323(A)(3) as written prohibits the pos-

session or viewing of depictions of a “minor” who is “in a

state of nudity”. It provides certain exceptions to liability,

including possession or viewing by the child’s parents,

possession with the written consent of the parents, and

possession for an artistic purpose. It contains no scienter

element. It does not define “minor,” and no other statute

gives a definition of “minor” applicable to O.R.C.

2907.323(A)(3).

Mr. Osborne entered a plea of not guilty and demanded

a jury trial. Immediately prior to trial Mr. Osborne chal-

lenged the constitutionality of O.R.C. 2907.323(A)(3) on

its face and as applied to him (R. 7), on the grounds that it

was “void for vagueness, overbroad, and violates the

defendant's right of privacy, and that it would appear to

make it illegal to possess any kind of material like that ina

person’s own home.” (R. 3)

Mr. Osborne also moved that the jury be instructed that

the word “minor” as used in O.R.C. 2907.323(A)(3) means

a person under fifteen. (R. 7) He argued that the word

“minor” as used in O.R.C. Chapter 2907 means one under

fifteen and cited the trial court to O.R.C. 2907.04, Cor-

ruption of a Minor, which defines “minor” for the purpose

of engaging in consensual sexual relations as a person

under fifteen. (R. 8) The trial court did not rule on the

definition of “minor” at that time. (R. 13-14).

At trial the prosecution introduced the three Polaroid

photographs and one snap shot into evidence. (J.A. 8-11,

14-15; R. 52-55, 66) Testimony from the police officers who

executed the search established that the pictures were

taken from Mr. Osborne’s home. (J.A. 8-9; R. 51-52) The

evidence offered to establish the photographic subject's

age was a hearsay statement made to Mr. Osborne and a

notation, made by a person unknown, on the back of one of

the photographs. (J.A. 9, 13, 17; R. 53, 62, 88)

Mr. Osborne testified that the photographs were given

to him “four or five years” before his prosecution by, Jack

Smith. (J.A. 17; R. 86, 88) Mr. Osborne testified that he

had assembled the photo album from which the pho-

tographs were taken. (J.A. 15; R. 87) He testified that he

believed that his friend Jack Smith had taken the pho-

tographs (J.A. 17; R. 90) and that Mr. Smith had asked

him to keep them. (J.A. 17; R. 89) He testified that he did

not know that keeping the photographs was illegal. (J.A.

16; R. 87) The State offered no rebuttal. (R. 99)

Mr Osborne asked the trial court to instruct the jury

(hat no criminal liability could attach where the material

was possessed for a proper purpose or with knowledge

that the subject’s parents consented to the photography.

(R. 103) The trial court refused this instruction. (R. 105)

Immediately prior to instructing the jury the court ruled

that it would define “minor” as a person under eighteen.

(R. 109)

The trial court instructed the jury, consistent with the

statutory definition of nudity found in O.R.C. 2907.01(H),

that nudity meant the “depiction of human male genitals,

pubic area or buttocks with less than a full opaque cover-

ing.” (R. 120) It defined “minor” as a person under eigh-

teen. (R. 119) It gave no instruction on scienter and

defined “possess” in a way that excluded any need to find

knowledge or awareness of the character of the item pos-

sessed, namely, that “possess” meant “to have, hold, con-

trol, or to exercise dominion or custody over a thing or

object.” (R. 120) The jury returned a verdict of guilty. (R.

125) The trial court sentenced Mr. Osborne to six months

incarceration. (!%. 130)

The Court of Appeals affirmed Mr. Osborne's convic-

tion. It said that “the United States Constitution does not

provide First Amendment protection to a person pri-

vately possessing child pornography.” (J.A. 28) It held

that nudity under O.R.C. 2907.323(A)(3) includes “only

.. . lewd exhibitions of the genitals” and that “nudity-

oriented material” refers only to depictions of nudity

which are “devoid of any legitimate purpose.” (J.A. 29) It

accepted the trial court’s definition of “minor” as one

under the age of eighteen. (J.A. 33)

On review, the Ohio Supreme Court affirmed Mr.

Osborne's conviction. It found that O.R.C. 2907.323(A)(3)

was “not so broad as to outlaw all depictions of minors in a

state of nudity, but rather only those depictions which

constitute child pornography.” (J.A. 42) Noting that this

Court's decision in New York v. Ferber, 458 U.S. 747, 764

(1982), required that the conduct prohibited “must be

adequately defined by the applicable state law, as written

or authoritatively construed” (the emphasis is the Ohio

Supreme Court's), the court said:

As we construe it today, R.C. 2907.323(A)(3) pro-

hibits the possession or viewing of material or perfor-

mance 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. (J.A. 42)

The court ruled that there was no error in the fact that

the jury had not been instructed on the new definition of

nudity since Mr. Osborne had not requested such an

instruction. (J.A. 54) It did not explain how Mr. Osborne

was to know at trial what definition of nudity would later

be devised. The possession prohibited by the statute, the

court said, must be for “prurient purposes” and not “mor-

ally innocent.” (J.A. 42) The court noted that O.R.C.

2907 .323(A)(3) “does not specify any element of scienter”

but found that it did not “plainly indicat([e] a purpose to

impose strict liability.” (J.A. 44) The court then applied

O.R.C. 2901.21(B), which makes recklessness the culpa-

ble mental state when a statute fails to require proof of a

culpable mental state and it is not clear that the legis-

lature intended to impose strict liability. The court

amended the statutory definition of recklessness, O.R.C.

2901.22(C), to require proof “that the defendant had some

notice of the character of the material possessed” and that

he was “on notice as to the illicit character of the mate-

rial.” (J.A. 45) The court found that there was no error in

the fact that the jury was not instructed on the requisite

mental state because Mr. Osborne’s requested jury

instructions were “completely silent on the element of

scienter.” (J.A. 46) In fact, Mr. Osborne requested that

the jury be instructed that criminal liability did not attach

if his possession was for one of the statutory “proper

purposes.” (R. 103-107) The court itself noted that these

“proper purposes” make clear that the possession pro-

hibited under the statute is one that is “not morally inno-

cent” and is “for prurient purposes”. (J.A. 42) The court

did not mention the fact that neither the trial court nor

prosecutor had said that a culpable mental state was

required. It did not explain how Mr. Osborne was to

foresee what would turn out to be the correct jury instruc-

tion on scienter. The court said that a conviction for pri-

vate possession of the materials regulated by O.R.C.

2907.323(A)(3) does not violate the right to privacy. (J.A.

40) It affirmed that “minor” means a person under eigh-

teen. (J.A. 43)

Mr. Osborne moved for a re-hearing in the Ohio

Supreme Court, reiterating his previous assertions con-

cerning his right to privacy and the unconstitutionality of

O.R.C. 2907.323(A)(3). He argued that, even with the

new elements added by the court, O.R.C. 2907.323(A)(3)

was substantially overbroad and vague. He also argued

that in affirming his conviction on the basis of new offense

elements that were not before the trial court, the Ohio

Supreme Court had violated his right to have these ele-

ments presented in a trial court where he could answer

the charges made against him. The court denied this

motion (J.A. 55)

SUMMARY OF ARGUMENT

The statute under which Appellant Clyde Osborne was

charged and convicted is part of a comprehensive set of

provisions in O.R.C. Chapter 2907 that regulate the pro-

duction, sale, distribution, and possession of materials

involving depictions of minors. These provisions govern a

continuum of materials depicting minors, extending from

the obscene, to non-obscene sexual activity, to mere

nudity. Ohio Revised Code 2907.321 prohibits the know-

ing creation, sale, distribution, or possession of

“obscenity involving a minor.” Ohio Revised Code

2907.322 prohibits the knowing creation, sale, distribu-

tion, or possession of depictions of a minor engaging in

sexual activity (any sexual touching of another person),

masturbation, or bestiality. Ohio Revised Code 2907.323,

the provision before this Court, prohibits the creation,

consent to creation, possession, or viewing of depictions

of a child “in a state of nudity.”

Mr. Osborne was convicted under the possession/view-

ing subsection of O.R.C. 2907.323, which is O.R.C.

2907.323(A)(3), for possessing four photographs that

depict a minor in a state of nudity. He challenged the

constitutionality of O.R.C. 2907.323(A)(3) in the trial

court and on appeal. On review, the Ohio Supreme Court

construed “nudity” to be nudity that constitutes a “lewd

exhibition” or “involves a graphic focus on the genitals.” It

added an element of scienter, “recklessness,” as the culpa-

ble mental state required for conviction and affirmed the

lower courts’ determinations that a “minor” is a person

under eighteen. Having thus re-written O.R.C.

2907.323(A)(3) in an effort to meet constitutional stan-

dards, the court affirmed Mr. Osborne's conviction.

On three grounds Appellant Clyde Osborne asks this

Court to reverse the Ohio Supreme Court's affirmance of

his conviction.

First, by affirming Mr. Osborne's conviction, obtained

under a statute unconstitutional for its invasion of First

Amendment rights, the Ohio Supreme Court denied Mr.

Osborne his right to due process. A facially overbroad

statute is invalid and cannot be revised by a court and

applied to acts done prior to the judicial revision. Mas-

sachusetts v. Oakes, 491 U.S. ——, 109 S. Ct. 2633,

2639-2640 (1989) (Scalia, J., concurring in the judgment in

part and dissenting in part); Shuttlesworth v. Bir-

mingham, 394 U.S. 147 (1969); Thornhill v. Alabama,

310 U.S. 88, 96 (1940). To convict in such a situation

violates due process since it constitutes an ex post facto

application of what in effect is a judicially created penal

prohibition. Bowie v. Columbia, 378 U.S. 347 (1964).

Since there was no valid statute prohibiting Mr. Osborne's

conduct at the time he acted, he was not warned that his

conduct could be illegal and he may not be punished for

that conduct. Further, since the Ohio Supreme Court

affirmed his conviction on the basis of offense elements

other than those used at trial, Mr. Osborne stands con-

victed of an offense for which he was not tried. Cole v.

Arkansas, 333 U.S. 196 (1948). He had no opportunity to

defend himself, because at trial he did not know that new

elements would be added or what they might be.

Second, since Mr. Osborne's possession of the pho-

tographs occurred in his home, it is protected by his right

of privacy and his right to receive information. Stanley v.

Georgia, 394 U.S. 557 (1969). There was no allegation or

evidence that Mr. Osborne had an intent to distribute the

photographs. For personal use, an individual may possess

photographs in his home, even if they are not constitu-

tionally protected. The privacy right applies to the non-

obscene depictions involved in this case as much as to the

obscene material involved in Stanley v. Georgia. The right

to receive information protects private, in-home posses-

sion ng communicative materials regardless of their

wortn.

The materials regulated by O.R.C. 2907.323(A)\(3) are

not child pornography as it is defined in New York v.

Ferber, 458 U.S. 747 (1982). Assuming, arguendo, that

they are, however, Ohio does not have a compelling inter-

est in prohibiting their private, in-home possession. Ohio

has a compelling interest in protecting its children from

being used in chiid pornography, and this interest allows

it to prohibit the production and commercial distribution

of child pornography. Ferber, 458 U.S. at 756-757. But the

prohibition of private, in-home possession is not suffi-

ciently related to combating the child pornography indus-

try to warrant infringing Mr. Osborne's fundamental

rights of speech and privacy.

Third, even as re-constructed by the Ohio Supreme

Court, O.R.C. 2907.323(A)(3) is unconstitutionally vague

and overbroad. It still prohibits possession of materials

protected by the First Amendment and is not narrowly

tailored to serve a compelling state interest. In Ferber,

this Court said that child pornography may be regulated

to “prevent the abuse of children who are made to engage

in sexual conduct for commercial purposes.” Ferber, 458

U.S. at 753. Ohio Revised Code 2907.323(A\(3) does not

regulate child pornography because it does not require

that sexual conduct be depicted or that commercial pro-

duction or distribution be involved.

Ohio Revised Code 2907.323(A)(3) regulates depictions

of mere nudity, with the gloss put on that term by the Ohio

Supreme Court. Photographs that are obscene or involve

sexual activity are regulated by other statutes. O.R.C.

2907.321; O.R.C. 2907.322. Depictions of mere nudity,

even of children, are protected by the First Amendment.

Ferber, 458 U.S. at 765 n. 18.

This Court found that there is harm in the commercial

distribution of depictions of children who have been posed

in performances involving sex1jal conduct. It said that the

posing of children in this fashion constituted child abuse.

Ferber, 458 U.S. at 757. Ohio Revised Code

2907.323(A)(3) is not directed against this harm, because

not only does it not require that sexual conduct be

depicted but also because it does not require a perfor-

mance or a posing. It thus is not narrowly directed against

the child pornography industry.

Ohio Revised Code 2907.323(A)(3) is not limited in its

application to commercial material. In Ferber this Court

found that the children used in child pornography are

harmed by the subsequent distribution in commerce of

the pornographic materials, first because commercial dis-

tribution means that the depictions are widely circulated,

and second because if there were no market for the depic-

tions, the producer would have no incentive to make

them. Ferber, 458 U.S. at 759-61. Ohio Revised Code

2907.323(A)(3) is not narrowly tailored to eliminate this

harm. It does not require that the depictions be commer-

cially produced or distributed. Rather, it prohibits mere

possession or viewing. Material possessed for private use

is not in commercial circulation. A viewing does not

require even possession. A person might view material

belonging to another, or displayed in such a way that he

views it inadvertently.

Finally, O.R.C. 2907.323(A)(3) does not serve a com-

pelling interest to protect children because it includes

three exceptions that permit possession or viewing by the

child’s parents, by anyone with the written consent of the

child’s parents, or for an artistic purpose. If the posses-

sion or viewing of this material is harmful to children, it

serves no reasonable state interest to permit possession

or viewing by the child’s parents, or with the consent of

his parents, or for an artistic purpose. These exceptions

cast doubt on the compelling nature of Ohio's asserted

interest because they permit possession or viewing of the

regulated materials in many situations. Ohio Revised

Code 2907.323(A)(3) is thus an underinclusive regulation.

Ferber, 458 U.S. at 765. Florida Star v. B. J. F., 491 U.S.

__., 109 S. Ct. 2603, 2612-2613 (1989).

ARGUMENT

Introduction

The violations of Mr. Osborne’s rights addressed in Part

I of the Argument arise from his conviction under a fac-

ially invalid statute and from the retroactive application

to him of a judicial re-construction of that statute. Part II

addresses the violation of Mr. Osborne’s rights to privacy

and to receive information, which resulted from his con-

viction for possessing photographs in his own home. Part

III demonstrates that O.R.C. 2907.323(A)(3), even as con-

strued by the Ohio Supreme Court below, is unconstitu-

tionally overbroad on its face and as applied to Mr.

Osborne, since it invades First Amendment rights with-

out serving a compelling state interest.

I. A FACIALLY INVALID STATUTE THAT PROSCRIBES

FIRST AMENDMENT ACTIVITY IS UNENFORCEABLE

AND CANNOT BE CONSTRUED AND THEN APPLIED TO

CONDUCT WHICH OCCURRED PRIOR TO THE CON-

STRUCTION.

Retroactive application of a judicial construction of a

facially invalid criminal statute that regulates First

Amendment activity violates due process.

A. It punishes for conduct that was not illegal at the

time done.

B. It penalizes the defendant for activity that he was

not warned could result in criminal charges.

C. Where the construction is made only on appeal and

is used to affirm, it leaves the defendant convicted of a

crime for which he received no hearing and was thereby

denied all the rights that attach in a criminal proceeding.

Each of these problems is present in the instant case.

A. Ohio Revised Code 2907.323(A)(3) Was Unconstitutional

On Its Face Due To Its Infringement Of First Amendment

Rights. Such A Statute Is Invalid And Has No Legal

Effect, And A Conviction Obtained Under It Is Invalid.

No criminal statute may be given legal effect if it vio-

lates the guarantees of the United States Constitution.

U.S. Const. amend. XIV, sec. 1. When a statute is invalid

on its face for its vague or overbroad regulation of First

Amendment activity, it has no effect, and no one can be

penalized under it for acts which occurred prior to a

constitutionalizing construction. An act, even if constitu-

tionally unprotected, is not unlawful if no valid statute

proscribes it.

Ohio Revised Code 2907.323(A)(3) as enacted and as

applied at the time of Mr. Osborne’s conviction was facially

invalid. It prohibited the possession or viewing of depic-

tions of child nudity, where there was a “showing, repre-

sentation, 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 below the top of the nipple,

or of covered make genitals in a discernibly turgid state.”

O.R.C. 2907.01(H). This definition does not require that

the minor be post-pubertal, and thus O.R.C.

2907.323(A)(3) included even pictures of naked babies on

bear skin rugs. Depictions of nudity are protected speech.

U.S. Const. amend. I. In Erznoznik v. Jacksonville, 422

U.S. 205, 213 (1975), this Court noted that “a picture of a

baby’s buttocks’ is protected material, and in New York v.

Ferber, 458 U.S. 747 (1982), it said that “nudity, without

more is protected expression.” Ferber, 458 U.S. at 765 n.

18. Ohio Revised Code 2907.323(A)(3) restricted this

speech activity without requiring proof of knowledge or

notice on the part of the possessor or viewer of the

character of the material, thereby violating due process.

Smith v. California, 361 U.S. 147, 152-155 (1959); Ferber,

458 U.S. at 765.

The Ohio Supreme Court attempted a “saving” con-

struction by re-defining nudity, adding scienter, and

defining “minor.” It then applied that construction to

affirm Mr. Osborne’s conviction.

Since O.R.C. 2907.323(A)(3) was invalid, Mr. Osborne

had no obligation to comply with it. Citizens are not

obliged to comply with an invalid statute. Where the

Constitution does not require compliance, a conviction

cannot stand. In Lovell v. Griffin, 303 U.S. 444 (1938), an

ordinance which prohibited the distribution of any kind of

literature without a permit was facially invalid. This

Court said, “As the ordinance is invalid on its face, it was

not necessary for appellant to seek a permit under it. She

was entitled to contest its validity in answer to the charge

against her.” Lovell, 303 U.S. at 452-453; Thornhill v.

Alabama, 310 U.S. 88, 97 (1940). In Shuttlesworth v.

Birmingham, 394 U.S. 147 (1969), an ordinance required

a permit to hold a parade, procession, or demonstration.

Since the ordinance set no standards for issuance of the

permit, this Court declared it invalid. It said that “a

person faced with an unconstitutional licensing law may

ignore it and engage with impunity in the exercise of free

expression for which the law purports to require a

license.” Shuttlesworth, 394 U.S. at 151. It is the validity

of the statute and not the nature of the accused’s conduct

that determines whether a crime has been committed.

This was recognized last term in Massachusetts v.

Oakes, 491 U.S. __, 109 S. Ct. 2633, 2639 (1989) (Scalia

and Blackmun, JJ., concurring in the judgment in part

and dissenting in part; joined by Brennan, Marshall, and

Stevens, JJ., dissenting). Oakes was convicted under an

overbroad statute, but while his appeal was pending in

this Court the Massachusetts legislature amended it and

eliminated the overbreadth. Justice Scalia noted that this

Court has “the power to adopt a rule of law which says

that the defendant's acts were lawful because the statute

that sought to prohibit them was overbroad and therefore

invalid.” Oakes, 109 S. Ct. at 2640. Justices Brennan,

Marshall, and Stevens joined in this proposition, saying

that “a State cannot salvage a criminal conviction under a

law found to be overbroad, or safeguard its right to pros-

ecute under a law challenged as overbroad, by curing the

statute's adjudicated or alleged infirmity prior to review of

that conviction or ruling of statutory invalidation by the

highest reviewing court.” Oakes, 109 S. Ct. at 2642 n. 1.

The position articulated by Justice Scalia recognizes

the fundamental unfairness of holding a litigant criminally

liable under a statute that cannot pass constitutional mus-

ter. Ifthe Constitution means anything, it must invalidate

criminal statutes that do not comport with it. If a statute

does not have to be constitutional to be enforceable, there

is no limit on a state’s power to impose criminal sanctions.

This Court has long recognized the invalidity of overbroad

statutes. Thornhill v. Alabama, 310 U.S. 88, 96 (1940):

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969). This

approach has the added benefit of eliminating the statute’s

“chilling effect” as early as possible by allowing the first

person to be prosecuted the opportunity to challenge the

statute regardless of whether his own conduct might be

legally proscribable under a properly drafted statute. It

also provides a legislative incentive to draft statutes nar-

rowly so that they do not invade precious First Amend-

ment rights. A rule to the contrary would make drafting

overbroad statutes “cost free.” Oakes, 109 S. Ct. at

2639-2640.

B. Ohio Revised Code 2907.323( A)(3) Gave No Fair Warning

That It Prohibited The Conduct Later Identified By The

Ohio Supreme Court As Illegal When It Re-Wrote The

Statute In Mr. Osborne's Case.

A conviction under an invalid statute cannot subse-

quently be made good even if a court hearing the case

gives the statute a construction that cures its constitu-

tional infirmity. To sustain a conviction in such a situation

penalizes a person for conduct that he was not warned

could be illegal at the time he acted. No one is required to

guess at what possible constitutionalizing construction

might be given an invalid statute.

An accused, after arrest and conviction under such a

statute, does not have to sustain the burden of dem-

onstrating that the State could not constitutionally

have written a different and specific statute covering

his activities as disclosed by the charge and evidence

introduced against him. Where regulations of the

liberty of free discussion are concerned, there are

special reasons for observing the rule that it is the

statute, and not the accusation or the evidence under

it, which prescribes the limits of permissible conduct

and warns against transgression.”

Thornhill v. Alabama, 310 U.S. 88, 98 (1940)(citations

omitted).

Statutes must “give fair warning of their effect and

permit individuals to rely on their meaning until explicitly

changed.” Miller v. Florida, 482 U.S. 423, 430 (1987),

quoting Weaver v. Graham, 450 U.S. 24, 28-29 (1981). A

facially invalid statute gives no warning of what future

interpretation may be made in order to save it. Mr.

Osborne could not have guessed and was not required to

guess at what elements might be added to O.R.C.

2907.323(A)(3). He was not warned by the statutory lan-

guage what conduct might legally be prohibited in the

future.

The Ohio Supreme Court, by adding an element of

scienter, defining “minor,” and re-writing the definition of

nudity to mean “lewd exhibitions” or depictions with a

“graphic focus on the genitals,” re-wrote O.R.C.

2907.323(A)(3). When it applied this re-written statute to

Mr. Osborne’s prior conduct, it violated his right to due

process just as if the Ohio legislature had enacted a crimi-

nal statute and applied it retroactively. Justice O'Connor

has noted “that the amendment of a statute pending

appeal to eliminate overbreadth is not different, in terms

of applying the new law to past conduct, from a state

appellate court adopting a limiting construction of a stat-

ute to cure overbreadth.” Massachusetts v. Oakes, 491

U.S. , 109 S. Ct. 2633, 2638 (1989)(plurality opinion).

Although the Ex Post Facto Clause has been applied only

to legislative enactments, “the principle on which the

Clause is based—the notion that persons have a right to

fair warning of that conduct which will give rise to crimi-

nal penalties,” makes it a deprivation of due process to

apply post-conviction judicial constructions to pre-con-

struction conduct. Marks v. United States, 430 U.S. 188,

191 (1977). In Calder v. Bull, 3 Dallas 386 (1798), this

Court defined ex post facto laws as:

lst. Every law that makes an action done before the

passing of the law; and which was innocent when

done, criminal; and punishes such action. 2d. aed

law that aggravates a crime, or makes me ay he

it was, when committed. 3d. Every law changes

the punishment, and inflicts a greater punishment,

than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence,

and receives less, or different, testimony, than the

law required at the time of the commission of the

offense, in order to convict the offender. All these,

and similar laws, are manifestly unjust and

oppressive.

Calder, 3 Dallas at 390-391.

The retroactive application of a judicial construction is

equally unjust and oppressive, and for that reason, (1) a

conviction had under an invalid statute cannot be vali-

dated by a “saving” construction of the statute, (2) a

conviction wrongly obtained under a valid statute cannot

be sustained by a construction that expands criminal lia-

bility to include the facts of the case, and (3) under these

principles Mr. Osborne cannot be convicted on the basis of

the new elements added to O.R.C. 2907.323(A\(3) by the

Ohio Supreme Court.

1. A Conviction Under An Invalid Statute Cannot Be

Saved By Re-Writing The Statute To Meet Constitu-

tional Requirements And Applying The New Con-

struction Retroactively.

Retroactive application of a constitutionalizing con-

struction of an invalid statute violates due process. In

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), this

Court held that where a state supreme court gives a

“saving” construction to a facially invalid statute, the

conviction in the case before it must be overturned. A

Birmingham parade-permit ordinance gave city officials

broad discretion to deny a permit on consideration of “the

public welfare, peace, safety, health, decency, good order,

morals or convenience.” Shuttlesworth, 394 U.S. at 148.

Shuttlesworth conducted a parade without a permit and

was convicted under the ordinance. On Shuttlesworth’s

appeal the Alabama Supreme Court for the first time

construed the ordinance to permit a denial only on “time,

place, and manner” considerations and upheld Shut-

tlesworth’s conviction by applying this new construction

to him. Shuttlesworth, 394 U.S. at 154. This Court said

that the new construction made the ordinance constitu-

tionally valid, but characterizing the construction as “a

remarkable job of plastic surgery upon the face of the

ordinance,” Shuttlesworth, 394 U.S. at 153, it stated:

It does not follow . . . that the severely narrowing

construction put upon the ordinance by the Alabama

Supreme Court in November of 1967 necessarily

serves to restore constitutional validity to a convic-

tion that occurred in iis cade the obdiaannn on he

was written.

Shuttlesworth, 394 U.S. at 155.

At the time Shuttlesworth acted, the ordinance was

being applied by Birmingham officials as written, not as

subsequently construed by the Alabama Supreme Court.

Shuttlesworth, 394 U.S. at 158. Therefore, said this

Court, “[i]t would have taken extraordinary clairvoyance

for anyone to perceive that this language meant what the

Supreme Court of Alabama was destined to find that it

meant more than four years later.” Shuttlesworth, 394

U.S. at 156.

This Court applied the same reasoning in Ashton v.

Kentucky, 384 U.S. 195 (1966), to declare invalid a Ken-

tucky statute that regulated First Amendment activity.

It said:

[Where an accused is tried and convicted under a

broad construction_of an Act which would make it

unconstitutional, the conviction cannot be sustained

on appeal by a limiting construction which eliminates

the unconstitutional features of the Act, as the trial

oy 1 under the unconstitutional construction of

the Act.

Ashton, 384 U.S. at 198, citing Shuttlesworth v. Bir-

mingham, 382 U.S. 87 (1965).

In Dombrowski v. Pfister, 380 U.S. 479 (1965), this

Court said that a “saving” construction cannot be applied

retroactively unless “such application affords fair warning

to the defendants.” Dombrowski, 380 U.S. at 491 n. 7.

There, persons charged under criminal statutes in Loui-

siana argued that the statutes were vague and overbroad,

in violation of the First Amendment. This Court granted

their requested injunctive relief, stating that “the reasons

for the vagueness doctrine in the area of expression

demand no less than freedom from prosecution prior to a

construction adequate to save the statute.” (Emphasis

supplied.) Dombrowski, 380 U.S. at 492. This was again

recognized in Massachusetts v. Oakes, 491 U.S. —__., 109

S. Ct. 2633 (1989), which involved a conviction under a

statute that prohibited the production of photographs of

nude children. Justice O’Connor, citing Dombrowski,

noted that subsequent constructions of a statute, whether

by legislative enactment or judicial interpretation, may

only be applied to the complaining defendant where there

was “fair warning” that his conduct was criminal at the

time performed. Oakes, 109 S. Ct. at 2638 (plurality opin-

ion).

When First Amendment activity is prohibited by a

facially invalid statute, the statute should not stand in the

way of any speech activity. Those who engage in such

activity should not fear that a subsequent re-writing of

the statute to limit its application to unprotected activity

will criminalize their formerly legal conduct. A rule to the

contrary would allow the facially invalid statute to chill all

activity which falls within its ambit. The need to keep

invalid statutes from chilling speech is the basis of the rule

that one who challenges a penal statute for overbreadth

need not himself have engaged in protected speech.

Thornhill v. Alabama, 310 U.S. 88 (1940). Mr. Osborne's

invalid conviction cannot be “resuscitated” by the judicial

construction rendered in his case.

2. A Conviction May Not Be Based On The Retroactive

Application Of A Statutory Construction Which

Expands Criminal Liability.

Construing an invalid statute to make it valid has the

same expansive effect as does construing a valid statute to

add new conduct to its proscriptions. In both cases con-

duct formerly legal is made illegal. In both cases, the

penalized conduct occurs before the prohibited conduct is

defined. This Court has consistently found that an expan-

sion of a valid statute by a state court violates due process

if the court applies that construction in the case before it.

In Bouie v. Columbia, 378 U.S. 347 (1964), Bouie was

convicted under a South Carolina trespass statute for

refusing to leave a lunch counter after being ordered to so

by its manager. The statute had previously been con-

strued to prohibit only an entry following notice not to

enter. The South Carolina Supreme Court, in hearing

Bouie’s appeal, said that the statute also applied to a

refusal to leave after being ordered to leave and affirmed

Bouie’s conviction. This Court reversed, finding the

application to Bouie of an expansive construction analo-

gous to ex post facto legislation, hence a denial of due

process. Bouie, 378 U.S. at 353-354.

In Rabe v. Washington, 405 U.S. 313 (1972), the

accused was convicted of exhibiting obscenity for showing

a film at his drive-in theater. The Washington Supreme

Court concluded that the film was not obscene but upheld

the conviction, stating that the film was obscene “in the

context of its exhibition,” namely at a drive-in theater

where persons other than patrons might view it. Rade,

405 U.S. at 315. That decision expanded the scope of

liability by allowing conviction for showing materials that

were not obscene in themselves, but obscene because of

the location in which they were shown. This Court said:

The statute under which petitioner was prosecuted

. made no mention that the “context” or location of

the exhibition was an element of the offense somehow

the word “obscene.” Petitioner's convic-

tion was thus affirmed under a statute with a mean-

ing quite different from the one he was charged with

violating.

Rabe, 405 U.S. at 315.

In Marks v. United States, 430 U.S. 188 (1977), this

Court held that the obscenity standards enunciated in

Miller v. California, 413 U.S. 15 (1973), which expanded

obscenity liability, could not be applied against an accused

whose act occurred prior to that ruling because it denied

the accused fair warning of the conduct prohibited.

Marks, 430 U.S. at 196.

3. Because Mr. Osborne Has Been Subjected To A Retro-

active Application Of A Statutory Construction

Which Added New Elements To O.R.C.

2907 .323(A)(3) His Conviction Must Be Reversed.

Mr. Osborne did not have fair warning at the time he

acted that his conduct could be illegal. No new con-

struction of a statute can change that fact. A statute

which imposes criminal liability must give notice of what

is prohibited in order that those subject to its regulation

may conform their conduct to it and thus avoid its sanc-

tions. When a statute fails in this regard, no one may be

punished for having failed to guess at its meaning. Under

the reasoning of this Court’s many decisions requiring fair

notice before criminal liability may attach, Mr. Osborne's

conviction cannot stand.

Bouie, Rabe, and Marks involved valid statutes

expanded by judicial construction in the accused's case

and applied against him in the expanded form. In the case

at bar, O.R.C. 2907.323(A)(3) as enacted by the Ohio

legislature was invalid. Adding new elements to an invalid

statute to make it valid has the same expansive effect as

does adding new elements to a valid statute.

The instant case is like Shuttlesworth, Ashton, and

Dombrowski, in that it involves an invalid statute. The

Ohio Supreme Court performed “plastic surgery.” Shut-

tlesworth, 394 U.S. at 153, to make of O.R.C.

2907.323(A (3) something quite different from what had

been enacted by the Ohio legislature. It took a statute

prohibiting depictions of nudity and changed it to one

prohibiting possession of depictions that constitute a

“lewd exhibition” or involve a “graphic focus on the geni-

tals” and appeal to prurient interest, where the posses-

sion is not morally innocent. It added a scienter element,

and defined “minor” differently from the definition used in

the rest of O.R.C. Chapter 2907. Ohio Revised Code

2°V77.323(A)(3) as construed bears little resemblance to

the statute under which Mr. Osborne was charged and

convicted.

As with the ordinance in Shuttlesworth, the admin-

istering authorities “thought [it] meant exactly what it

said.” Shuttlesworth, 394 U.S. at 158. The complaint filed

against Mr. Osborne by a Columbus, Ohio, police officer

lacked any allegation of scienter and charged that the

photographs possessed depicted mere nudity. (J.A. 7)

Appellee’s counsel, the City Attorney of Columbus, Ohio,

did not suggest to the trial court that it charge the jury

that Mr. Osborne must have been aware of, or had notice

of, the character of the photographs. He did not tell the

court that the photographs must show anything beyond

mere nudity. The trial court defined nudity using the

statutory definition. O.R.C. 2907.01(H). (R. 120) It read

O.R.C. 2907.323(A)(3) as imposing strict liability. It even

defined “possession” in a way that did not require knowl-

edge or notice of the character of the item possessed. (R.

120) Thus, like Shuttlesworth, Mr. Osborne did not have

fair warning that his conduct could be criminal when he

acted because O.R.C. 2907.323( A\(3) was being applied as

written, and not as later construed on his own appeal by

the Ohio Supreme Court.

Ohio Revised Code 2907.321 and 2907.322 regulate the

possession of obscenity depicting minors and of sexually

oriented materials depicting minors. One could net have

predicted that a reviewing court would find prurient

appeal to be an element in O.R.C. 2907.323(A)(3), since

those two sections govern sexually oriented materials.

Under the rule of construction in pari materia the

inference is that because O.R.C. 2907.323(A)(3) did not

mention prurient interest, and other sections regulate

obscene and sexually oriented depictions of children, it

was not an element of O.R.C. 2907.323(A)(3). Thus, the

Ohio Supreme Court's addition of a “prurient purpose”

element was a surprising construction that one in Mr.

Osborne's position could not anticipate.

A court, of course, may in many situations construe a

criminal statute and apply the construction in the case at

bar. But when it construes an overbroad statute that

invades First Amendment rights to make it valid and

applies that construction in the case at bar, that applica-

tion is ex post facto. One who acted before the con-

struction did not receive fair warning that his conduct

might be criminal.

Mr. Osborne was convicted under an invalid statute.

When he acted, he had no fair warning of what conduct

was prohibited. His conviction cannot stand under the

Ohio Supreme Court’s new version of O.R.C.

2907 .323(A)(3).

C. The Ohio Supreme Court Added New Elements To Ohio

Revised Code 2907.323(A)(3) And Affirmed Mr. Osborne's

Conviction On The Basis Of Them, Even Though Mr.

Osborne Never Had A Hearing On, Or An Opportunity To

Defend Against, Those Elements.

It is a violation of due process where, as in the case at

bar, a state supreme court adds new elements to save a

statute and then affirms the conviction, leaving the

accused convicted on the basis of elements that were not

in issue at his trial. When new elements are added after

conviction, the state has been excused from meeting its

constitutionally required burden of proof, and the accused

has been denied a hearing and the right to present a

defense with the effective assistance of counsel.

“(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, 364 (1970). In

the case at bar, the trier of fact was not called upon to

address the elements that were used by the Ohio Supreme

Court to sustain the conviction. In Thornhill v. Alabama,

310 U.S. 88 (1940), Thornhill was convicted under a stat-

ute that prohibited “loitering and picketing.” On appeal,

the Alabama Supreme Court attempted no narrowing

construction and affirmed. This Court reversed, finding

no reason to determine “whether the evidence . . . could

ever support a conviction founded on different and more

precise charges. ‘Conviction upon a charge not made

would be a sheer denial of due process.’” Thornhill, 310

U.S. at 96, citing De Jonge v. Oregon, 299 U.S. 353, 362

(1937).

Every criminal defendant must be given “a meaningful

opportunity to present a complete defense.” Crane v.

Kentucky, 476 U.S. 683, 690 (1986); California v. Trom-

betta, 467 U.S. 479, 485 (1984); Washington v. Texas, 388

U.S. 14, 23 (1967); In Re Oliver, 333 U.S. 257, 273 (1948).

When the accused is not notified of the elements of the

offense at the time of trial, he is denied this opportunity.

The Sixth Amendment as applicable to the states through

the Fourteenth Amendment guarantees a person charged

with a criminal offense notice of the charges against him

and a hearing on those charges, with the effective assist-

ance of counsel. Counsel cannot be effective when the

elements of the crime are unknown to counsel at the time

of trial. When the trial court does not know the elements

of the offense, fair determinations on the admissibility of

evidence, appropriate jury instructions, the scope of voir

dire and of argument cannot be made. See Shuttlesworth

v. Birmingham, 382 U.S. 87, 92 (1965). When the accused

does not know the elements of the charge, he cannot make

rational decisions on, or assist in, his own defense.

In Cole v. Arkansas, 333 U.S. 196 (1948), Roy Cole was

convicted under the second section of a two-part Arkan-

sas penal statute. On review the Arkansas Supreme

Court found the conviction not to be sustainable under the

second section but affirmed it after finding that Cole had

violated the first section, which prohibited substantially

different conduct. This Court found a denial of due pro-

cess since Cole had not had an opportunity to answer a

charge under the first section:

No principle of procedural due process is more

clearly established than that notice of the specific

charge, and a chance to be heard in a trial of the

issues raised by that c , if desired, are among

the constitutional rights of every accused in a crimi-

nal proceeding in all courts, state or federal.

Cole, 333 U.S. at 201.

Clyde Osborne is in a position similar to that of Cole. He

has been convicted of a crime against which he had no

opportunity to defend. As a result of the Ohio Supreme

Court's re-writing of O.R.C. 2907.323(A)(3), Mr. Osborne

was denied notice of the charge he faced and an oppor-

tunity to defend against it. Mr. Osborne was convicted;

not by his jury, but in the closed chambers of the Ohio

Supreme Court. Had Mr. Osborne known at the time of

trial the age of minority, or that scienter was required, he

might have made different decisions as to how to present

his defense. Had he known that his possession required a

“prurient interest” and a purpose that was not “morally

innocent,” he could have asked the jury to decide that the

evidence did not show that these elements were applica-

ble to him. Had he known that “nudity” required a “lewd

exhibition” or a “graphic focus on the genitals,” he could

have asked the jury to decide that the evidence did not

establish that the state had met its burden of proof on

these elements.

Since Mr. Osborne was not aware of the elements of the

offense, he could not make a rational choice as to how to

plead to the charge, and he could not make informed

decisions about trial tactics. He was deprived of the effec-

tive assistance of counsel, for counsel did not know the

nature of the charge. Therefore, his conviction cannot

stand.

Il. THE STATE MAY NOT PROHIBIT PRIVATE POSSES-

SION OF MATERIALS THAT DEPICT MINORS IN A

STATE OF NUDITY WHERE THE NUDITY CONSISTS OF

A “LEWD EXHIBITION” OR “INVOLVES A GRAPHIC

FOCUS ON THE GENITALS.”

Clyde Osborne was arrested, prosecuted, and con-

victed for possessing three Polariod photographs and one

snap shot of a nude minor, which were seized from the

drawer of a desk in the bedroom of Mr. Osborne's home

during a search executed under a warrant. (R. 66) Mr.

Osborne testified that he had been given the three Polar-

oid photographs and one snap shot in his home by a friend,

Jack Smith. (R. 86, 88) There was no evidence that the

photographs were commercially produced or distributed.

All were kept in a photograph album that Mr. Osborne

assembled for his personal use and had privately pos-

sessed for a number of years. (R. 86-87)

The state may not criminalize the private, in-home pos-

session of photographs, regardless of their nature. “Ifthe

First Amendment means anything, it means that the

State has no business telling a man, sitting alone in his

own home, what books he may read or what films he may

watch.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). The

materials regulated by O.R.C. 2907.323(A)(3) as con-

strued below are depictions of child nudity where the

nudity consists of a “lewd exhibition” or “involves a

graphic focus on the genitals.” Whether or not these

materials fall within a legitimate definition of child por-

nography, their private, in-home possession is protected

by the First Amendment rights of privacy and to receive

information. Stanley, 394 U.S. at 564.

The constitutional right to privacy has been recognized

by this Court in many contexts. Roe v. Wade, 410 U.S. 113

(1973); Griswold v. Connecticut, 381 U.S. 479 (1965);

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.

562(1977); Michigan v. Clifford, 464 U.S. 287, 296 and n.7

(1984). The right to privacy in one’s home is a fundamental

guarantee of the Constitution. U.S. Const. amends. I, IV.

The First Amendment also protects the right to receive

information. Martin v. Struthers, 319 U.S. 141, 143

(1943). Every person has the right to think his own

thoughts, seek his own information and come to his own

truths. This right extends to information regardless of its

worth. Winters v. New York, 333 U.S. 507, 510 (1948).

Unpopular ideas may not be suppressed merely because

they are unpopular. Kingsley International Pictures

Corp. v. Regents of University of New York, 360 U.S. 684,

688-89 (1959); Cohen v. California, 403 U.S. 15, 25 (1971).

Offensive messages, so long as the means of communica-

tion are peaceful, “need not meet standards of accept-

ability.” Organization for a Better Austin v. Keefe, 402

U.S. 415, 419 (1971).

Because child pornography is not within the definition

of obscenity as articulated in Miller v. California, 413

U.S. 15 (1973), it does not fall into any of the categories of

materials whose content places them outside the reach of

the First Amendment. Materials defined as child por-

nography are not necessarily obscene. New York v. Fer-

ber, 458 U.S. 747, 764 (1982). They are regulated even

though they may have serious literary, artistic, political or

scientific value. Ferber, 458 U.S. at 764. The purpose of

their regulation is not to purge the marketplace of ideas of

the information communicated, but to protect the young

persons used in their production. As a consequence, the

First Amendment right to receive information is more

significantly invaded by a prohibition against possession

of child pornography than by one against possession of

materials that fall within the legal definition of obscenity.

In order to prohibit possession of non-obscene mate-

rials, the state must establish that it has a compelling

interest which can be served in no less intrusive manner.

Shelton v. Tucker, 364 U.S. 479 (1960). There is no need to

prohibit private, in-home possession in order to stem the

traffic in child pornography. The state’s interest in reg-

ulating the production and sale of child pornography is to

protect children from the harm suffered as a result of

being posed in sexual conduct and of having the resulting

depictions circulate in commerce. It is not necessary to

invade the privacy of the home to protect that interest.

The state’s interest in stopping the trade in commercially

produced child pornography is adequately served by reg-

ulating production, sale and distribution. This Court said

in Stanley:

(W]e are faced with the argument that prohibition of

possession of obscene materials is a necessary inci-

dent to statutory schemes prohibiting distribution.

That argument is based on alleged difficulties of prov-

ing 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 individ-

ual’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.

Stanley, 394 U.S. at 567-568.

The state's interest in regulating the private possession

of child pornography is no greater than its interest in

prohibiting the private possession of obscene materials.

Possession without intent to sell is not a part of the

production or distribution of child pornography. The harm

of production has passed and distribution and circulation

have ceased when the materials are privately possessed.

Whatever message is conveyed by a depiction of unclothed

minors, be it familial tenderness or sexual attraction, the

state has no interest in suppressing that message in the

privacy of the home. While controlling “the moral content

of a person's thoughts. . . may be anoble purpose. . . itis

wholly inconsistent with the philosophy of the First

Amendment.” Stanley, 394 U.S. at 565-66.

Even if the state's interest in prohibiting possession of

child pornography could outweigh First Amendment

rights to private, in-home possession of such materials,

the materials regulated by O.R.C. 2907.323(A)((3), as

discussed in Part III below, an ast Glib tee

because they do not depict sexual conduct and therefore

do not pose the same threat to children’s safety as does

child pornography. The state's interest in prohibiting pri-

vate, in-home possession of the materials regulated by

O.R.C. 2907.323(A)(3) is less than its interest in prohibit-

ing child pornography and does not outweigh the First

Amendment rights of privacy and to receive information.

Regardless of the presence or absence of constitutional

protection for the contents of the photographs taken from

Mr. Osborne's personal photo album, his right to possess

and view those photographs and to reap whatever mes-

sage they may yield cannot be infringed.

Ill. THE STATE MAY NOT, CONSISTENT WITH FIRST

AMENDMENT RIGHTS OF SPEECH, PROHIBIT THE

POSSESSION OR VIEWING OF MATERIALS WHICH

DEPICT MINORS IN A STATE OF NUDITY WHERE

THE NUDITY CONSTITUTES A “LEWD EXHIBITION”

OR “INVOLVES A GRAPHIC FOCUS ON THE GENI-

' TALS.”

Ohio Revised Code 2907.323(A)(3), as construed by the

Ohio Supreme Court, prohibits the possession or viewing

of depictions of nude children, where the nudity con-

stitutes a lewd exhibition or involves a graphic focus on

the genitals. (J.A. 42) As is discussed below:

A. This prohibition is overbroad because it encom-

passes materials protected by the First and Fourteenth

Amendments.

B. It is not narrowly drafted to serve a compelling

state interest that justifies an invasion of First Amend-

ment rights.

A. Depictions Of Child Nudity, Where The Nudity Con-

stitutes A “Lewd Exhibition” Or “Involves A Graphic

Focus On The Genitals,” Are Protected Speech.

The Ohio Supreme Court held that the materials regu-

lated by O.R.C. 2907.323( A) are those depicting minors in

a state of nudity where the nudity constitutes a “lewd

exhibition” or “involves a graphic focus on the genitals.”

(J.A. 42) It held that such depictions are “child pornogra-

phy” and as such are unprotected by the First Amend-

ment. (J.A. 42) The Ohio Supreme Court's decision

expands the definition of child pornography into the area

of protected speech.

Child pornography was defined in New York v. Ferber,

458 U.S. 747 (1982). It must “visually depict sexual con-

duct by children below a specified age.” “Sexual conduct”

must be defined and “some element of scienter” is

required. It need not be obscene and need not appeal to

prurient interest. Ferber, 458 U.S. at 764-65. The state's

interest in regulating child pornography is “(tjo prevent

the abuse of children who are made to engage in sexual

conduct for commercial purposes.” Ferber, 458 U.S. at

754. It is “the nature of the harm to be combated” that

defines the limits of child pornography. Ferber, 458 U.S. at

764. Child pornography must be produced for commercial

purposes. Ferber, 458 U.S. at 759-761.

The Ferber definition of child pornography draws the

line between protected and unprotected speech where

depictions of children are involved. This Court noted in

Ferber that child pornography is not necessarily without

literary, artistic, political, or social value. Ferber, 458 U.S.

at 761, 764. Child pornography, unlike other types of

unprotected speech, need not be essentially worthless. It

is not the content of child pornography that makes it

unprotected. Child pornography is unprotected because

of the state’s compelling interest in protecting children.

Ferber, 458 U.S. at 753. When materials depicting chil-

dren do not involve sexual conduct and are not produced

or distributed commercially, it no longer serves the state's

interest in the protection of children to regulate the mate-

rials, and the materials then fall outside the very narrow

categories of unprotected speech. The materials regu-

lated by O.R.C. 2907.323(A)(3) are not child pornography

and are protected by the First Amendment.

As will be shown in the remainder of Sub-Part A, these

materials are not child pornography because (1) they do

not involve depictions of sexual conduct, and (2) they need

not be produced, sold or possessed for commercial pur-

poses.

1. Ohio Revised Code 2907.323( A)(3) Prohibits Posses-

sion Or Viewing Of Materials That Do Not Depict

Sexual Conduct.

Child pornography need not be obscene but must depict

sexual conduct. Ferber, 458 U.S. at 765. The films that

formed the basis for the prosecution in Ferber showed two

boys masturbating. Ferber, 458 U.S. at 752. This Court

approved New York's definition of acts of sexual conduct:

“actual or simulated sexual intercourse, deviate sexual

intercourse, sexual bestiality, masturbation, sado-mas-

ochistic abuse, or lewd exhibition of the genitals,” Ferber,

458 U.S. at 765, on the assumption that “the New York

courts will [not] widen the possibly invalid reach of the

statute by giving an expansive construction of the pros-

cription of ‘lewd exhibition({s] of the genitals.’” Ferber, 458

U.S. at 773.

The Court of Appeals in this case interpreted O.R.C.

2907.323(A)(3) to prohibit depictions of nudity that

involve a “lewd exhibition of the genitals.” (J.A. 28-29)

The Ohio Supreme Court expanded that definition by

dropping the requirement that genitalia he depict>d. A

“lewd exhibition” is all that the court required. To some,

simple nudity may be a lewd exhibition. To others, a lewd

exhibition may be a particular position or stance assumed

by the photographic subject. The Ohio Supreme Court's

requirement that the regulated depictions appeal to pru-

rient interest adds nothing to the meaning of “lewd

exhibition.” The words “prurient” and “lewd” are equiv-

alent and provide no guidance as to what may be depicted.

What is certain, however, is that no sexual conduct is

necessary. Possession of a depiction of a minor engaged in

masturbation, bestiality or sexual activity with another

person falls under the prohibitions of O.R.C. 2907.321 or

2907 .322.

The phrase “graphic focus on the genitals” even more

clearly fails to limit O.R.C. 2907.323(A)(3) to sexual con-

duct. It simply requires a photograph showing the geni-

tals, presumably in such a way as to direct the viewer's

attention to the genitals. This language relates to the

camera focus or angle rather than the activity of the

photographic subject. The films in Ferber showed mastur-

bation. This Court’s use of “lewd exhibition of the genitals”

must be read in light of that fact. This Court did not

indicate that a mere depiction of genitals, from whatever

camera angle or with whatever focus, could constitute

child pornography.

Ohio Revised Code 2907.323(A)(3) was not intended to

regulate depictions of sexual conduct. As noted, compan-

ion sections of the Ohio Revised Code prohibit the posses-

sion of such materials. O.R.C. 2907.321; O.R.C. 2907.322.

The Ohio Supreme Court's use of the phrases “lewd

exhibition” an’ “graphic focus on the genitals” does not

change the fact that the statute prohibits depictions of

mere nudity. These phrases provide little guidance as to

what photographs may be possessed without running the

risk of prosecution.

2. Ohio Revised Code 2907.323( A)(3) Prohibits Posses-

sion Of Depictions That Are Not Produced,

Distributed Or Possessed For Commercial Ends.

Ohio Revised Code 2907.323(A)(3) prohibits mere pos-

session or viewing. The materials need not have been

created for a commercial purpose, nor need they be pos-

sessed or viewed for a commercial purpose. In Ferber this

Court found commercial distribution to be “intrinsically

related to the sexual abuse of children” that is involved in

posing them for photographic depictions of sexual con-

duct. It noted that commercial distribution caused emo-

tional harm, Ferber, 458 U.S. at 759 n. 10, and that the

distribution network “must be closed if the production of

material which requires the sexual exploitation of chil-

dren is to be effectively controlled.” Ferber, 458 U.S. at

759. It said that “the advertising and selling of child

pornography provide an economic motive for and are thus

an integral part of the production of such materials.”

Ferber, 458 U.S. at 761.

This Court thus viewed commercial distribution as

exacerbating the sexual abuse involved in the production

of child pornography and on that basis found that New

York had a compelling interest in prohibiting its produc-

tion. Ohio Revised Code 2907.323(A)(3), however, is not

limited in application to commercial materials. [t does not

require that the materials be commercially produced or

distributed. It does not require that the photographic

subject be posed but covers candid photographs, even

photographs taken without the subject's knowledge. It

does not require that the possession be for a commercial

purpose.

The photographs involved in this case are Polaroids and

a snap shot. They were not produced commercially. Mr.

Osborne did not acquire them commercially, and he did

not possess them for a commercial purpose. They had

been in Mr. Osborne's home for “four or five years.” (R. 86)

Non-commercial photographs which do not depict sexual

conduct are not child pornography.

B. The Ohio Supreme Court's Construction Of Ohio

Revised Code 2907.323(A(3) Is Not Narrowly Tailored

To Serve A Compelling State Interest.

A state must have a compelling interest when it legis-

lates to limit First Amendment activity. The First

Amendment needs “breathing space,” and statutes

restricting speech “must be narrowly drawn and repre-

sent a considered legislative judgment that a particular

mode of expression has to give way to other compelling

needs of society.” Broadrick v. Oklahoma, 413 U.S. 601,

611-612 (1973). Even when the state's purpose is “legiti-

mate and substantial, that purpose cannot be pursued by

means that broadly stifle fundamental personal liberties

when the need can be more narrowly achieved.” Shelton v.

Tucker, 364 U.S. 479, 488 (1960). Ohio Revised Code

2907.323(A)(3) as construed does not meet this test,

because it is not narrowly tailored to serve a state interest

which warrants the invasion of First Amendment rights.

As will be shown in this Sub-Part B, (1) O.R.C.

2907 .323(A)(3) does not serve a compelling state interest

because it does not govern materials that depict sexual

conduct, and the statutory exceptions in O.R.C.

2907.323(A)(3) allow possession in circumstances incon-

sistent with a goal of protecting children, and (2) it is not

narrowly tailored to protect children because it prohibits

mere possession and viewing of materials not inherently

harmful to the children depicted.

1. Ohio Revised Code 2907.323( A 3) Does Not Serve A

Compelling State Interest.

This Court has carefully scrutinized rationales that

assert the protection of minors as a justification for invad-

ing the First Amendment. Cor Broadcas:ing Corp. v.

Cohn, 420 U.S. 469 (1975); Smith, Judge v. Daily Mail

Publishing Co., 443 U.S. 97 (1979). The Ohio Supreme

Court said that O.R.C. 2907.323(A)\(3) serves Ohio's inter-

est in the protection of children. (J.A. 51) The statute as

construed below does not serve that interest. Ohio

Revised Code 2907.323(A)(3) was not intended to protect

children from sexual abuse. Other statutes regulate mate-

rials that depict minors in an obscene way or engaging in

masturbation, bestiality or sexual activity. O.R.C.

2907.321; 2907.322. No physical contact with the pho-

tographic subject is involved in the depictions regulated

by O.R.C. 2907.323(A\(3). This remains true under the

Ohio Supreme Court's construction. If any touching,

including masturbation is depicted, prosecution would

have to proceed under O.R.C. 2907.321 or O.R.C.

2907.322, which are specifically aimed at materials depict -

That O.R.C. 2907.323(A)(3) is not directed at eliminat-

ing child sexual abuse is evident from three exceptions to

liability. First, liability is negated by parental consent to

the production, possession, use or transfer of the regu-

lated materials. Second, liability is negated where the

possessor or viewer is the depicted child's parent. Third,

liability is also negated by the fact that the possession is

for an “artistic” purpose. However, in O.R.C. 2907.321

and O.R.C. 2907.322, the sections that regulate depic-

tions of sexual conduct, liability is not negated by parental

possession, parental consent, or artistic purpose,

although those two sections, like O.R.C. 2907.323(A\(3),

recognize a list of “proper purposes” based on legal, medi-

When it construed O.R.C. 2907.323(A\3), the Ohio

Supreme Court changed the character of the depictions

regulated to those that are not “morally innocent,” that

appeal to “prurient interest” and involve “a graphic focus

on the genitals” or constitute “lewd exhibitions.” (J.A. 42)

The court did not eliminate the parental possession, par-

ental consent, or artistic purpose exceptions. Under the

court’s construction, a parent’s consent to the use of his

child in lewd exhibitions which appeal to prurient interest

negates liability for possession, use, or viewing of those

materials. Lewd exhibitions of children may also be pos-

sessed by parents or for artistic purposes without crimi-

nal penalty. If the court’s construction had successfully

changed O.R.C. 2907.323(A)(3) to regulate only depic-

tions involving sexuai conduct, the parental possession,

parental consent, and artistic purpose exceptions would

make the construction more damaging than if there were

no statute at all.

The exclusion of depictions possessed by parents, with

parental consent, or for an artistic purpose makes O.R.C.

2907.323( A)(3) underinclusive. Ferber, 458 U.S. at 765. If

the possession of the materials regulated were inherently

harmful to the children depicted, there would be no justi-

fication for these exceptions. When the state asserts a

compeiling interest but enacts legislation that only par-

tially serves that interest, the interest is not truly com-

pelling. Florida Star v. B. J. F., 491 U.S. —_, 109S. Ct.

2603, 2612-2613 (1989). A statute “cannot be regarded as

protecting an interest ‘of the highest order’. . . when it

leaves appreciable damage to that supposedly vital inter-

est unprohibited.” Florida Star, 109 S.Ct. at 2613 (Scalia,

J., coneurring in part and concurring in the judgment).

The state's interest in regulating child pornography is

“safeguarding the physical and psychological well being of

a minor.” Ferber, 458 U.S. at 756-57. Child pornography

harms its minor subjects through the sexual abuse and

molestation which occurs in production, Ferber, 458 U.S.

at 757-58, and through the psychological harm which

results from the distribution and circulation of the mate-

rials in commerce. Ferber, 458 U.S. at 759-60. The mate-

rials reguiated by O.R.C. 2907.323(A)(3), however, do not

involve sexual conduct. They depict no sexual abuse or

molestation of any child. Ohio Revised Code

2907.323(A)(3), unlike the New York statute in Ferber,

does not require the posing of a child in a performance.

The depiction may be a candid photograph, taken even

without the knowledge of the child subject. There is no

physical harm involved. The materials regulated by

O.R.C. 2907.323(A)(3) are not limited to those commer-

cially distributed or produced. They include, as in this

case, snap shots and Polaroid photographs privately pos-

sessed for years. The psychological harm caused by com-

mercial distribution and circulation is not addressed by

O.R.C. 2907.323(A)(3). Ohio has no compelling interest in

prohibiting the possession or viewing of such materials.

2. Ohio Revised Code 2907.323(A)(3) Is Not Narrowly

Tailored To Protect Children.

When the state seeks to protect a compelling interest

by regulating communicative materials, it must use the

least restrictive means available to do so. Shelton v.

Tucker, 364 U.S. 479 (1960). While Ohio has an interest in

protecting its children from participation in physically

and psychologically harmful photographic production, it

may not sweep in protecting that interest so broadly as it

has done in O.R.C. 2907.323(A)(3).

The materials regulated by O.R.C. 2907.323(A\3)

depict no sexual conduct and need not be commercially

produced or circulated. They are not child pornography.

There is no demonstrated connection between possession

of such materials and any physical or psychological harm

to the photographic subject. If the First Amendment is to

be invaded, there must be a clear correlation between the

prevention of the abuse of minors and the infringement of

First Amendment rights. More than mere speculation is

required.

Even if the materials regulated by O.R.C.

2907.323(A)(3) were child pornography as defined in Fer-

ber, regulation of private possession is not the least

restrictive means by which to serve the state's interest.

While commercial distribution is the essence of the child

pornography industry, possession by a single individual

who has no intention of distributing is quite different.

Mere possession does not involve any physical abuse of

the child depicted and necessarily means that circulation

has stopped. A possessor is not part of the child pornogra-

phy industry. Any transfer of child pornography that is

privately possessed would be punishable under O.R.C.

2907.321 and O.R.C. 2907.322. It is not necessary to

prohibit private possession to dry up the market in child

pornography. This Court rejected such a justification

regarding obscenity in Stanley v. Georgia, 394 U.S. 557,

568 (1969).

Ohio Revised Code 2907.323(A)(3), in addition to pos-

session, prohibits viewing. A depiction prohibited by

O.R.C. 2907.323(A)(3) might be on the screen of a drive-in

theater, where passersby can see the screen. Thus, one

who has no connection with the depiction might view it.

Viewing is so remote from the production or distribution

of child pornography that no state interest is served by

prohibiting it. A viewer, like a possessor, is not part of the

child pornography industry.

Ohio Revised Code 2907.323(A)(3), as construed by the

Ohio Supreme Court, is unconstitutionally overbroad. It

regulates materials that are not child pornography. It

does not serve a compelling interest in protecting children

from exploitation in the child pornography industry. It

violates First Amendment rights because it is not nar-

rowly tailored to serve the state's interest in protecting

children by the least restrictive means.

CONCLUSION

The Ohio Supreme Court affirmed Clyde Osborne's con-

viction under O.R.C. 2907.323(A)(3), a statute which was

invalid for its invasion of First Amendment rights at the

time Mr. Osborne was charged and tried. Because the

statute was invalid, Mr. Osborne’s conviction was invalid.

The Ohio Supreme Court attempted to save O.R.C.

2907.323(A)(3) by giving it a construction which added

new elements to the offense. At the same time, the court

held that Mr. Osborne’s conviction under the invalid stat-

ute could stand under the new construction. Mr.

Osborne’s conviction should have been reversed

regardless of whether the new construction saved O.R.C.

2907.323(A)(3). He did not have notice at the time he acted

that his conduct was illegal. He did not have an oppor-

tunity at trial to defend against the elements of O.R.C.

2907.323(A)(3) as it was later construed.

Mr. Osborne was convicted for his private, in-home

possession of depictions of nude minors. Every person has

the right to read or look at whatever material he pleases in

the privacy of his own home.

The Ohio Supreme Court failed in its effort to constitu-

tionalize O.R.C. 2907.323(A)(3). The statute continues to

regulate constitutionally protected materials. The court

expanded the definition of child pornography to include

depictions of nudity, which although lewd, do not portray

sexual conduct and are not commercially produced or

distributed. Even with this construction, O.R.C.

2907.323(A)(3) is not narrowly drafted to serve a compell-

ing state interest. Moreover, it prohibits possession and

viewing, acts which are not related to the activity of the

child pornography industry. At variance with its pur-

ported goal of protecting children, it permits possession

and viewing under three exceptions that belie Ohio's

assertion of a compelling interest and render O.R.C.

2907.323(A)(3) underinclusive.

For the above reasons, Mr. Osborne requests that this

Court reverse the judgment of the Ohio Supreme Court

and order that court to discharge him and to dismiss all

proceedings against him in this matter.

Respectfully submitted,

RANDALL M. DAaNa