Amicus Curiae Brief — Osborne v. Ohio
Supreme Court brief1990
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In The
Supreme Court of the United States
October Term, 1989
CLYDE OSBORNE, -
ON APPEAL FROM THE SUPREME COURT OF OHIO
BRIEF OF AMICUS CURIAE
CHILDREN’S LEGAL FOUNDATION
ALAN E. SEARS
DOUGLAS V. DRURY |
2845 E. Camelback Rd.
Suite 740
Phoenix, AZ 85016
(602) 381-1322
OrcT AVAILABLE COPY | oul
TABLE OF CONTENTS
TABLE OF AUTHORITIES.......- eevecces -iv
CONSENT OF THE PARTIES....++eeeee0+ 1
INTEREST OF AMICUS CURIAE....++ee6-s 1
INTRODUCTION. .cccccccccesccccceseee &
ARGUMENT... csccccecsesessesseeeveveelhd
I. THE STATES HAVE A
"SURPASSING" INTEREST IN
REGULATING CHILD PORNOGRAPHY
BECAUSE OF THE GREAT HARM IT
INFLICTS UPON OUR CHILDREN... .12
A. Child Pornography Is
Produced By Sexually
Exploiting A Child....s«sc«ee+14
B. Child Pornography Creates
A Permanent Record Of
Abuse Of The Children
ImnVOl]lV@d.ccccccccccsccsseceeeelS
Cc. Child yy Itself Is
An Inetrument Of Abuse........17
D. Child Pornography Is Used
Por Illicit Purposes By
POSSGOSBBOLG. cc cc cccscccccceeeeel®
E. Production, Distribution
And Possession Of Child
aphy Violates
Legitimate Privacy Interests
Of The Children Abused........19
II.
Itt.
A.
l.
2.
A STATE MAY CONSTITUTIONALLY
PROHIBIT POSSESSION OF CHILD
PORNOGRAPHY. ccccccccccssssssesal
The Ferber Rationale That
Child Pornography Is
Outside The Scope Of The
First Amendment Permits
States To Prohibit
Possession of Child
Pornography... ceccccsesseseeee2dd
Criminalizing Possession Of
Child Pornography Does Not
Violate The Possessor’s
Right To Privacy........+++.++28
THE OHIO CHILD PORNOGRAPHY
POSSESSION STATUTE, O.R.C.
2907.323(A)(3) IS
CONSTITUTIONAL AND VALIDLY
CRIMINALIZES NON-PROTECTED
CONDUCT. cccccccccccccccesscessdt
The Ohio Supreme Court
Authoritatively Construed
Ohio Law In A Constitutional
CO EEE ee F
The Ohio Supreme Court
ye | Construed The
Term ° »
PPT TTTITITTITTLITee >
The Ohio Supreme Court
ly Interpreted The
Statutes Scienter
Requirement... .cceseceseseeeess4l
3. The Ohio Supreme Court
Properly Construed The
Statute To Meet Constitutional
Requirements By Applying The
Statute Only When The Nudit
Constitutes A “Lewd Exhibition"
Or Involves A Graphic Focus
On The Genitals". ..cceccseceees42
B. O.R.C. Section 2907.323(A) (3)
Is Not Substantially
Overbroad..ccccccccccseseeeee e458
fF
CERTIFICATE OF SERVICE....+++++++++60
-iii-
TABLE OF AUTHORITIES
Cases Pages
4000 ts Inc. v. State,
(Ark. 1986).......58
Bowers v. Hardwick, 478 U.S. 186,
, 92 L. Ed. 2d
140 et 6 Tee
Broadrick v. Oklahoma,
413 U.S. SOL (1973)... . ee eee ee 0 45,48
Com. v. Bono,
7 Wass.App. 849, 384 N.E.2d
1260) ccccccccccecccesssessesssess dt
Com. v. Ferro,
ss. 379, 361 N.E.2d 1234
C1977 cccccccccccccccccccccccccc cS
Com. v. Stock,
° 8 (Pa.Super 1985).....58
Dombrowski v. Pfister,
@ @ TTT TELITITTTTrt | |
Felton v. State,
e (Ala. 1988)... eee00222
In Re Kimbler,
° -3rd 453, 161 Cal.Rptr.
53 (1979) cccccccccccesseseseseessd®
Massachusetts v. Oakes,
TSI U.S. T05 L. Ed. 2d at
505 EE ond cccccccccccect
Miller v. California,
a — TYTTITITITITITTY (St.
-iv-
N.A.A.C.P. v. Button,
oe * )- “ee eeeeeeeeeee 38
New York State Club Association v.
New York City,
.S. , 101 L. Ed. 2d 1,
108 S. Ct. 2225 (1988)........... 50
New York v. Ferber,
* o B2)ecccceeceeeee eds, ld,
25,48,56
Paris Adult Theatre I v. Slaton,
o * TTTTTTITITICTT TS
P le v. Geever,
357 N.E.2d 12700 (Ill. 1988)......22,28
le v. Illardo,
reas W.Y.2d 408, 423 wN.Y¥.S.2d
470, 399 N.B.2d 59 (1979)......--58
P v. Illinois,
OTST UB. 157 11987)... 2.0. 53
Rippr tease v. Collin,
° Be ccccccceceeed?
Rose v. Locke,
73 U. 3. 7 (1978S) cece ccccceeees5h
Roth v. United States,
e@e TYTTITITITTIT ) Tt”.
a | Vv. yt P
ewe C9) cc eecccccceveetds 2B,
30
State v. Baker,
" (Kan.App. 1985).....58
State v. Davis,
. (Wash. 1989)... 66004422
-Vv=-
State v. J.R. Distributors, Inc.,
82 Wash.2d 584, S12 P.2d (1979)..58
State v. Lesieure,
els , 404 A.2d
457 COTO pd ccccccccccccccccccccees De
State v. Martin,
>. > 2 (Tenn. 1986)......58
State v. Meadows,
io State 3rd 43, 503 N.E.2d
697 (1986) cert. denied, 480 U.S.
936 C1GST Pecccccccccccccccccccccesagady
34
State v. ee
. . 363 (1988)... 2 cee e e 44
United States v. 12-200 Foot Reels,
>. . THTTITITITT TTT Tt
U.S. Vv. w ’
. (9th Cir. 1987)....55
Other Authorities
es Model Penal Code and
Commentaries, § 751.4(3)
Final of the Atto
e on
s page 1986).......27
O.R.C. Section errrrrrrrrnrnrnvyéaiie
O.R.C. | rrrTTTrTTrrrir+TTTee.
O.R.C. 2907. 322(A) (SS). cence ccceeees2dD
O.R.C. 2907. 323(A) (3). ee eeeccceeees9,37
39,42,45,57
P. Schlafl
ys ed. Pornography
Victims 10 (1987 —TTTTTTTTTTTTTTTh CC;
Protection of Children From
Use in Pornography: Toward
Constitutional and Enforceable
Legislation, 12 U. Mich. J.L.R.,
295, 301 C19TOpcccccccccccccecccseelhS
Shouvlin, Preventing The Sexual
Exploitation of woe dren:
A Model Act, 17 Wake Forest
L. Rev. 535, 545 (ISBT) oo cee ee ee 16
-vii-
CONSENT OF THE PARTIES
Attorneys for Appellant and
Appellee have consented to the filing of
an amicus curiae brief by Children’s
Legal Foundation. (Appendix A).
INTEREST OF AMICUS CURIAE
Children’s Legal Foundation, Inc.
(CLF), formerly Citizens for Decency
through Law, Inc., is a non-profit legal
organization founded in 1957. The
Foundation exists to assist public
officials in the enforcement and
drafting of constitutional obscenity and
child pornography laws. It also
provides legal assistance to victims of
pornography, especially child victims.
CLF provides public information on legal
and social issues related to
pornography, and on sexual exploitation
ele
and victimization by pornographers. The
Foundation has a legal staff of
attorneys practicing exclusively in the
First Amendment/pornography area. CLF
has filed more than 50 amicus curiae
briefs with this Court on virtually
every major obscenity and child
pornography issue before this Court in
the past three decades. CLF attorneys
have participated in trials and appeals
in more than 40 states. It has more
than 120 affiliated chapters across the
nation representing approximately
100,000 supporters.
The Poundation’s Executive Director
Alan B. Sears is the former Executive
Director of the Attorney General’s
Commission on Pornography. In that
capacity he oversaw and supervised the
drafting of the Final Report with its
Recommendation Number 45 that states
adopt laws prohibiting the possession of
child pornography. The Commission,
after more than two years of examining
the issue from legal, moral, clinical,
social scientific, and other relevant
perspectives, concluded that possession
of child pornography is so intimately
connected to the acts of child
molestation depicted that a prohibition
on possession of such material was
required.
Children’s Legal Foundation is
profoundly concerned with the
victimization and exploitation of
children by child pornographers. It
believes the Ohio law at issue is a
constitutional and necessary method of
deterring the child abuse and
molestation involved in every child
pornography case.
INTRODUCTION
The harm inflicted upon children by
child pornography gives the states a
“surpassing” interest in regulating
production, distribution and possession
of the material.
Each time child pornography is
produced, a child is sexually exploited.
Reproductions of these acts are “crime
scene photographs" and distribution of
them constitutes continued exploitation
of the child involved. The photographic
reproductions are a permanent record of
the abuse suffered by the children
involved. They fear discovery by loved
ones and blackmail by the producers and
possessors of the photographs. In
addition, child pornography in and of
itself is an instrument of abuse.
Pedophiles and other child molesters
show this material to their intended
victims in an effort to portray such
conduct as normal. There are no
“innocent collectors" of child
pornography. A child’s constitutional
risht to privacy is violated by the
production, reproduction, distribution
and possession of the material.
Because of the pervasive nature of
the extreme harm inflicted upon our
society by child pornography, a state
may constitutionally prohibit possession
of child pornography. In determining
that child pornography is outside of the
scope of protection of the First
Amendment, this Court recognized that
states have greater leeway in the
regulation of pornographic depictions of
children. New York v. Ferber, 458 U.S.
747 (1982). The state has a compelling
interest in safeguarding the physical
and psychological well-being of
children. The distribution of
photographs and films depicting sexual
activity by juveniles is intrinsically.
related to the sexual abuse of those
children. The advertising and selling
of child pornography provides an
economic and social motive for the
production of those materials. The
value of permitting live performances
and photographic reproductions of
children engaged in lewd sexual conduct
is exceedingly modest. Recognizing and
classifying child pornography as a
category of material outside the
protection of the First Amendment is not
incompatible with prior judicial
precedent. See Ferber, supra.
Ali of the reasons above stated,
for allowing the prohibition of
production and distribution of child
pornography also apply to its
possession. The market for child
pornography cannot be dried up without
curbing demand for the “product.” By
criminalizing possession and treating it
as a form of contraband, the states can
substantially “dry up” the market by
lowering demand and taking away the
economic and social incentives of the
producers and distributors.
Criminalizing possession of child
pornography does not violate the
possessors right to privacy. Although
the Constitution extends special
safeguards to the privacy of the home,
that protection is not without
limitation. In Stanley v. Georgia, 395
U.S. 557 (1969), this Court found the
constitution proscribed prosecution for
possessing certain “obscene” materials,
but did not express an opinion on
statutes making criminal possession of
other types of printed, filmed, or
recorded materials or in other locations
than the home. Since that time, the
Court has viewed Stanley, supra, as
explicitly narrow and precisely
delineated; and has not been disposed to
extend the precise, carefully limited
holding of Stanley, supra.
There are additional constitutional
concerns raised in the instant case that
were not present in Stanley, supra.
Stanley, supra weighed the interest of a
possessors right to privacy in his own
home against the right of the state to
protect society from obscene material
and to protect the individual’s mind
from the effects of obscenity. This
case involves a persons right to privacy
in his home as against state's
surpassing interesting to protect its
children from harm and the victia
children’s right to privacy. The
balance of these interests must be
struck in favor of the compelling
interest of the state andthe privacy
rights of the children.
Ohio constitutionally prohibited
possession of certain types of child
pornography in enacting O.R.C.
2907.323(A)(3). The Ohio Supreme Court
authoritatively construed the statute to
conform to the Constitution. The
construction given the statute narrowed
it, making it more difficult for the
state to obtain a prosecution.
The Ohio statute is constitutional
as applied to Appellant. Appellant
objects to the Ohio Supreme Court’s
construction of the term “minor.
However, he fails to note that under
either possible construction, (as
discussed hereinafter, p. 39) the
children depicted in the pictures he
possessed were minors. (The children
depicted were 14 years old or younger.)
Ohio Supreme Court did not “add a
scienter requirement” as claimed . by
Appellant. Such a requirement was
already part of the statutory scheme.
By noting that minors. depicted in a
state of nudity involved a “lewd
exhibition" or a “graphic focus on the
genitals", the Ohio Supreme Court
properly construed the statute to meet
constitutional requirements as set forth
in New York v. Ferber, supra.
The statute is not substantially
overbroad. This Court noted in Ferber
that the overbreadth doctrine is “strong
medicine", that it is employed with
hesitation, and then only as a last
resort. Application of the doctrine
becomes even more attenuated where, as
here, behavior moves from “pure speech”
toward conduct and the conduct is within
valid criminal laws that reflect a
legitimate state interest. Appellant
has failed to demonstrate that the Ohio
statute is substantially overbroad.
The fact that Appellant ' was
convicted prior to the construction of
the statute by the Ohio Supreme Court
does not relieve him from the
consequences of his conduct. Where a
state appellate court adopts a limiting
construction of a statute to cure
overbreadth, that statute may be applied
to conduct occurring prior to the
construction, as long as the application
affords fair warning to the Defendant.
Appellant clearly had fair warning that
his conduct would violate the statute.
Due to the great harms inflicted by
child pornography, and the _ states
surpassing interest in regulating it,
possession can be constitutionally
regulated. The Ohio statute is such a
constitutional regulation of child
pornography.
I. THE STATES HAVE A “SURPASS ING"
INTEREST IN REGULATING CHILD
PORNOGRAPHY BECAUSE OF THE GREAT
HARM IT INFLICTS UPON OUR CHILDREN.
The harm of child pornography
extends far beyond the harm caused to
the children injured in the production
of the material. Child pornography
should be treated as contraband and its
mere possession should be a crime.
Pedophiles and child abusers use
this material to draw children into a
“cycle of pornography." First,
pornography is shown to the child for
“sex education.“ Second, pedophiles
attempt to convince the child that
explicit sexual activity is acceptable,
even desirable. Third, the material is
used to convince the child that other
children are sexually active. Pourth,
child pornography desensitizes; it
lowers a child’s inhibitions. Fifth,
some of these sessions progress to
sexual activity. Sixth, photographs or
movies are taken of the sexual activity.
Finally, those photographs or movies are
shown to other children, thus completing
the cycle. Final Report of the Attorney
General’s Commission on Pornography,
page 138 (See Appendix B).
This is not merely a discrete,
limited threat. FBI Special Agent
Kenneth Lanning, a noted expert in
investigation of child sexual abuse,
testified before the Attorney General's
Commission on Pornography that
pedophiles, “may be small in number,
(but) they are a very serious threat to
our society because they have a
potential for large numbers of
victims.... My experience has been
[that] ... all preferential molesters or
pedophiles ... collect child pornography
and/or child erotica...." Testimony of
Special Agent Kenneth Lanning, Attorney
General’s Commission on Pornography
hearing, Miami, Florida, 11/20/85, pages
230, 232.
This Court has noted that “[(T)he
use of children as...subjects of
pornographic materials is very harmful
to both the children and the society as
a whole.” (citation omitted). “It has
been found that sexually exploited
children are unable to develop healthy
affectionate relationships in later
life, have sexual disfunctions, and have
a tendency to become sexual abusers as
adults." (citation omitted). New York
v. Ferber, 458 U.S. 747, 758 fn 9
(1982).
A. Child
Whenever child pornography is
produced, a child is sexually used,
physically abused or injured and
-1l4é-
emotionally scarred. The use of a minor
for most sexual activities is proscribed
by state laws. Reproductions of these
acts are “crime scene photographs.”
Many of the sexual acts depicted in
child pornography are criminal even
aside from the age of the sinor
children; for example many states still
proscribe bestiality, sadomasochistic
sexual acts, and various formes of
sodomy. (See for example the Georgia
and Virginia state criminal codes.)
threat to the child victim than does
sexual abuse or prostitution. Because
the child's actions are reduced to «a
recording, the pornography may haunt his
in future years, long after the original
misdeed took place. A child who has
posed for a camera sust go through life
-15-
knowing’ that the recording is
circulating within the mass distribution
system for child pornography.” New York
v. Ferber, supra at 759, fn 10 quoting
Shouvlin, Preventing the Sexual
Exploitation of Children: A Model Act,
17 Wake Forest L. Rev. 535, 545 (1981).
“It is the fear of exposure and the
tension of keeping the act secret that
seem to have the most profound emotional
repercussions.” Note, Protection of
Children From Use in Pornography:
Toward Constitutional and Enforceable
Legislation, 12 U. Mich. J.L.R., 295,
301 (1979).
In addition to the fear that a
loved one may discover the material, a
child may also, fear blackmail from the
producer, collectors, or other adults; a
fear that they will be forced to perform
further acts lest the prior photographs
be revealed. In recent years the
-16-
“exposure” and resulting harm even to
adults who posed at an earlier age is
well known. (One well known example is
Miss America, Vanessa Williams Vv.
Penthouse, see U.S.A. Today, July 4,
1986 (Life) at 1, Col. l.
This continuing threat exacerbates
the original harm; it is a separate and
distinct harm, a continued molestation
and abuse of the child.
CG. Child Itself Is An
netrumen se
Pedophiles and other child
molesters show child pornography to
their intended victims in an effort to
portray sexual conduct by children as
normal conduct, something that other
children do and enjoy. It is an attempt
to reduce a child’s natural inhibitions
to such behavior. Pedophiles also use
child pornography as an instructional
tool. One victin, Mary Steinman,
-17-
i —
described the abuse she received from
her father as follows:
He would look at his porno
pictures almost every day,
using them to get ideas of
what to do to me or amy
siblings. I have had my hands
tied, my feet tied, my mouth
taped to teach me big girls
don’t cry. He would tell me I
was very fortunate to have a
father that would teach me the
facts of life.
My father had an easel that
he put by the bed. He'd pin a
picture on the easel and, like
a teacher, he would tell ame,
This is what you're going to
learn today. He would then
act out the picture on me. As
early as the age of four; my
father would rent me out to
— 9 people for the purpose
of sex.
P. Schlafly, ed. Pornography’s Victims
108 (1987).
"The act of selling these materials
(guarantees) that there will be an
additional abuse of children." Ferber,
supra, at 761, fn 13. (citation
omitted)
D. Child Is Used For
c sessors
There are few, if any, “innocent
collectors" of child pornography. It is
used to aid in the sexual fantasies, to
assist in masturbation and other forms
of gratification of the possessor, and
is used to lure and instruct child
victims. The photographs which the
offender possesses are records of a real
child who was traumatized, terrorized,
used and abused. In our society, there
is no legitimate use for child
publication of the visual material
increases the emotional and psychic harm
suffered by the child. (citation
omitted) Thus, distribution of the
material violates the individual
interest in avoiding disclosure of
personal matters." (citation omitted)
-19-
Ferber, supra, at 759, fn 10. The
victims privacy rights are violated
repeatedly as the photographs are
circulated, collected, used and reused
by the pedophiles and child
pornographers and continually
distributed throughout the child
pornography aetwork.
Child pornography inflicts
numerous, severe and continuing harms
upon America’s children and their
privacy interests. Children cannot
consent to either the sexual abuse or
the photography. Pedophiles and child
pornographers violate the children,
photograph their violations for use in
sexual gratification, and use those
photographs to entice other children
into this cycle of pornography. It is
hard to imagine a more objectionable use
of the most private parts of a child’s
body. The need to prevent these evils
-20-
—
gives the states a surpassing interest
in protecting children by drying up the
market for child pornography through
regulation.
II. A STATE MAY CONSTITUTIONALLY
PROHIBIT POSSESSION OF CHILD
PORNOGRAPHY
This Court noted in Ferber, supra,
the relationship between the
distribution of photographs and films
depicting sexual activity by children
and the sexual abuse of those children.
Id. at 761, fn 13. The only practical
way to end this abuse is to dry up the
marketplace of child pornography by
“imposing severe criminal penalties on
persons selling, advertising or
otherwise promoting the product.” Id.
at 760. Possession is an integral,
indeed the most important link in the
child pornography chain. The mere
existence of a “marketplace” creates a
demand for more photographs which
eZie
——
creates a demand for more abuse which
extends in an ever growing cycle.
This court has recognized that the
state has a compelling, indeed o
surpassing interest in stopping the
production and distribution of child
pornography. Id. at 757. Numerous
courts have recognized that the only
method of accomplishing this objective
is to dry up the market. Felton v.
State, 526 S.2d 638 (Ala. 1988), State
v. Davis, 768 P.2d 499 (Wash. 1989),
State v. Meadows, 503 N.E.2d 697 (Ohio
1986), People v. Geever, 522 N.E.2d 1200
(Ill. 1988). Although Ferber, supra was
decided in the context of distribution
of child pornography, the same problems
exist and the same reasoning applies to
the possession of child pornography.
The Ferber Rationale That Child
ornogr s s +
n « ates
To Prohibit Possession Of Child
A.
-22<
=
outside the scope of the protection of
Child Pornography is completely
the First Amendment; it is an evil that
the states may restrict. The inherent
evils of child pornography
overwhelmingly outweigh the “expressive
interests” (if any) at stake. There is
no valid argument that child pornography
should have the protection of the First
Amendment.
This Court began its First
Amendment analysis of the child
pornography issue in Ferber, supra, by
noting that the test for obscenity as
stated in Miller v. California, 413 U.S.
15 (1973) does not apply to child
pornography. The Court recognized that
the states have greater leeway in the
regulation of pornographic depictions of
children because: (1) the state has a
compelling interest in safeguarding the
physical and psychological well being of
o23-
a child; (2) the distribution of
photographs and films depicting sexual
activity by juveniles is intrinsically
related to the sexual abuse of those
children; (3) the advertising and
selling of child pornography provide an
economic motive for the production of
those materials; (4) the value of
permitting live performances and
photographic reproductions of children
engaged in lewd sexual conduct is
exceedingly modest, if not de minimis;
and (5) recognizing and classifying
child pornography as a category of
material outside the protection of the
First Amendment is not incompatible with
the Courts earlier decisions.
This Court found that the evil to
be restricted so overwhelmingly
outweighs the expressive interest, if
any, at stake, that no process of case
by case adjudication is required. “When
240
a definable class of material ... bears
so heavily and pervasively on the
welfare of children engaged in its
production,...the balance of competing
interest is clearly struck and...it is
permissible to consider these materials
as without the protection of the First
Amendment.” 458 U.S. at 764.
This analysis is directly and
appropriately applicable to the
possession of child pornography.
In order to dry up the market for
child pornography, the state must be
able to reach the possessor, the last,
but most important link inthe chain.
As long as there is demand for this
material, it will exist. By punishing
the end user, the consumer, the
possessor, the one who creates demand,
greater strides can be made toward
drying up the marketplace than through
prevention or production and
distribution alone.
Just as the production of child
pornography is intrinsically related to
child abuse, so is the possession. Bae
noted in Section I, possessors of child
pornography are often pedophiles and
other child abusers who use the material]
to lower the inhibitions of their
victims and to instruct their victims in
forms of sexual humiliation, violence
and abuse.
By criminalizing the possession of
child pornography, by treating it as a
form of “contraband", the states can
further dry up the market by lowering
demand and taking away the economic and
social incentives of the producers and
distributors. In addition, the
production and distribution network and
the class of possessors are not
independert, but interrelated. Child
@26-
:
j
pornography is viewed as a commodity
among pedophiles and child
pornographers. Visual depictions are
traded and sold between possessors.
Final Report of the Attorney General’s
Commission on Pornography, page 150
(1986). Since these relationships are
intertwined, the states can take away
economic and social incentives and slow
the distribution of child pornography by
criminalizing possession.
ca with production and
distribution, the value of permitting
possession of photographic reproductions
of children engaged in lewd § sexual
conduct is exceedingly modest, if not de
minimis. Just as there are n0
legitimate reasons for production and
distribution, there is no legitimate
reason for possession.
Finally, recognizing and
Classifying possession of child
=F
pornography as conduct unprotected by
the First Amendment is not incompatible
with this court’s earlier decisions,
including Stanley v. Georgia, 394 U.S.
557 (1969).
B. Criminalizing Possession Of Child
Pornograph toss Not Violate The
Possessor’s Right To Privacy
The Illinois Supreme Court noted in
People v. Geever, supra, that, although
the constitution extends special
safeguards to the privacy of the home,
that protection is not without
limitation. 522 N.E.2d at 1205;
(relying on Bowers v. Hardwick, (1986),
478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d
140). Bowers held that the due process
clause of the Fourteen Amendment does
not confer a right of privacy to
homosexuals to commit sodomy in the
privacy of their homes.
Twenty states now have statutes
criminalizing the private possession of
-28-
sexually explicit pictures of minors.
The Ohio Supreme Court registered the
first major decision on the validity of
the possession statutes in State v.
Meadows, 28 Ohio State 3rd 43, 503
N.E.2d 697 (1986) cert. denied 480 U.S.
936 (1987). The Ohio statute upheld in
Meadows, O.R.C. 2907.322(A)(5) prohibits
the possession of a photo of a minor
“engaging in sexual activity” without
requiring it to be obscene.
Both the defendant in Meadows,
supra, and the defendant herein invoked
this court’s decision in Stanley v.
Georgia, supra, inan attempt to wrap
their conduct in constitutional
protection. However, Stanley only
protected the right to be free from
prosecution for merely possessing
“obscene” materials (pictorial or
literary) within the home. As stated in
Meadows, 503 N.Ed.2d at 700;
-29-
; Thus, Stanley has always stood
for -- and still stands for --
the proposition that the state
may not, consistent with the
First Amendment, regulate the
mere private possession of
material in one’s own home
: merely because it is obscene.
However, it is also
significant to our inquiry
that Justice Marshall
cautioned at footnote 11 of
his majority opinion in
Stanley that the court did not
eos mean to express any
openeon on statutes making
Criminal possession of other
so rin imed, or
recorded materials.’*
s Id. 394 U.S.
at 568. Rather, it was
rec zed in the Stanle
opinion that there could Be
{emphasis by the court in
Meadows ]
The compelling reasons listed by
this Court in Ferber, supra, for
allowing the prohibition of production
and distribution of child pornography
also apply to the possession of child
pornography and provide the compelling
~"=
reason for overriding the right of the
individual to possess materials in his
own home. Child pornography is exactly
the type of “other types of printed,
filmed, or recorded anberiae* which
were not included under the protection
of Stanley, supra. Though much material
that is obscene involves abuse to the
performers, and has other anti-social
aspects, child pornography always
involves harm to children for its
production. This Court has
categorically rejected the argument that
Stanley, supra, should be extended
beyond the specific facts of that case.
In United States v. 12-200 Foot Reels,
413 U.S. 123, at 127-28 (1973), the
Court ruled that Stanley, supra, is to
be viewed as “explicitly narrow and
precisely delineated”; the court was
"not disposed to extend the precise,
carefully limited holding of Stanley.”
aZieq
This court also emphasized the
narrowness and limits of the Stanley,
supra, holding in Paris Adult Theatre I
Ve Slaton, 413 U.S. 49, 66-69 (1973).
Possession of child pornography
does not raise the same constitutional
concerns found in _ Stanley, supra.
There, the court weighed the privacy
interest of the possessor against the
state’s interests in protecting society
from obscene material and to protect the
individual’s mind fromthe effects of
obscenity and struck the balance in
favor of the possessor of obscene
material. Not only are the states’
- interests more compelling in regulating
child pornography (Ferber, supra, at
757); but the competing privacy
interests of the possessor and of the
children involved must also be
considered.
@32<
Children are legally incapable of
consenting to their participation in the
production of child pornography. Each
time the material is reproduced,
distributed, possessed or viewed, the
child’s right to privacy is violated.
Therefore, the court must weigh the
possessor’s right to privacy not only
against the state’s compelling interest
in protecting its children, but against
the child’s right of privacy. This
Court has acknowledged that the victim’s
knowledge of publication of the visual
material increases the emotional and
physic harm suffered by the child and
the fact that distribution of the
material violates the individual
interest in avoiding disclosure of
personal matters. Ferber, supra, at
759, fn 10.
The balance of these interests must
be struck in favor of the compelling
o29=
interest of the state and the privacy
rights of the children and against the
privacy rights of the possessor of child
pornography.
The Ohio Supreme Court weighed the
competing interests in State v. Meadows:
We believe the interest of the
state in protecting the
privacy, health, emotional
welfare and well-rounded
growth of its young citizens,
together with its undeniable
interest of safeguarding the
future of society as a whole,
comprise exactly the type of
Reem ney reasons’
justifying a ‘very limited’
First Amendment intrusion
envisioned by the Stanl
court. At the same time,
cost to the individual
possessor’s right of free
speech, privacy and thought,
caused the state’s banning
of vi momentous from an
episode of sexual abuse of a
child,-is slight. Moreover,
the content value of such
material is trifling and
alternative means of
stimulation exists.”
503 N.E.2d at 703. In our political
history and under our law, the home has
been regarded as a shielded place of
privacy. There are circumstances,
however, which call for the individual’s
right to this sanctuary to be balanced
against critical interests of society.
For example, the person has no right to
possess narcotics, heroin and other
forms of contraband, even in the home.
Child pornography should be similarly
viewed as contraband.
When considering child pornography,
the individual’s assurance of full
freedom of conduct in the home must
yield, consistently with the Supreme
Court’s holding in Bowers v. Hardwick,
supra, to society’s “most compelling”
interest to protect its children from
the lasting harm of emotional and sexual
degradation. People v. Geever, supra,
at 1206.
Possession has been described as
the most important link in the chain of
distribution of child pornography. Id.
-35-
at 1206. The Attorney General’s
Commission on Pornography reviewed the
factual and legal situation regarding
child pornography and recommended that
all 50 state legislatures amend laws,
where necessary, to make the knowing
possession of child pornography a
felony. As noted above many state
legislatures have followed the
recommendation. Final Report of The
Attorney General's Commission on
Pornography, Recommendation 45, 150.
See Appendix C, (1986).
Criminal punishment for the knowing
possession and collecting of sexually
explicit pictures of minors is necessary
to prevent the further exploitation of
those children whose permanent record of
abuse forever haunts their privacy and
mental health, and is necessary to
prevent the use of the pictures to
facilitate the seduction of other
xv
children by the possessor and user of
collections of these crime scene photos.
These objectives require the possessors
limited privacy interests to yield.
III. THE OHIO CHILD PORNOGRAPHY
POSSESSION STATUTE, O.R.C.
2907.323(A)(3) IS CONSTITUTIONAL
AND VALIDLY CRIMINALIZES
NON-PROTECTED CONDUCT.
The Appellant has attacked the Ohio
statute as constitutionally invalid as
overbroad and as applied to hin. None
of the purported infirmities raised by
Appellant withstand scrutiny.
A. The Ohio Supreme Court
r ve onstru ° w
n utiona er
Appellant has challenged his
conviction based on his claim that the
Ohio Supreme Court “re-wrote" 0O.R.C.
2907.323(A)(3). However, Appellant
fails to distinguish between a
re-writing of a statute by a court and
an authoritative construction of that
statute.
aZ7o
As an initial matter, it should be
noted that a full and authoritative
construction of a state statute by the
highest court of that state finds this
court, for which the words of the
state’s highest court are in effect the
words of the statute. N.A.A.C.P. Vv.
Button, 371 U.S. 415, 417 (1963).
Therefore, the issue before the court is
not whether the Ohio court “re-wrote"
the state statute, but whether’ the
statute as authoritatively construed
meets the requirements of the
Constitution.
It will be presumed that’ the
legislature acted in light of the
provisions of the Constitution and did
not propose to act inconsistently with
its protections. Accordingly, a court
must construe a statute as not offending
the Constitution, provided the
~*~
construction is a reasonable one.
People v. Geever, supra, at 1205.
In upholding the conviction of
Osborne, the Ohio Supreme Court
reasonably construed O.R.C.
2907.323(A) (3) to meet the
constitutional requirements as
enunciated in Ferber: the conduct to be
prohibited is adequately defined and
scienter is required on the part of the
Defendant.
1. The Ohio Supreme Court Properly
onstru e Tern nor
It is not required that every word
of a statute be precisely defined.
Pursuant to Ohio law, a term undefined
by statute is to be accorded its common,
everyday meaning. 0O.R.C. Section 1.42.
The Ohio Supreme Court acted properly in
defining a minor as a person below the
age of eighteen, that being the accepted
definition of the term "minor."
Appellant attempts to demonstrate that
-39-
minority can mean something other than
“below the age of eighteen” by citing
O.R.C. 2907.04. However, that statute
defines the age of consent for certain
specified acts in Ohio, and does not
attempt to define the term minority for
all purposes. The mere fact that a
legislature might not make it
non-criminal or criminal to engage in
certain acts between the ages of 16 and
18 or 18 and 21 years of age does not
therefore limit the legislatures power
to prohibit photographing, distributing
or possessing photographs of such acts.
As stated above, photographs may be even
more harmful than actual sexual
activities with or abuse of a child.
Appellant states that “had [he]
known at the time of the trial the age
of minority..., he might have made
different decisions as to how to present
his defense." This assertion cannot
-40-
withstand even the mildest scrutiny. No
matter which definition of minority the
Ohio Supreme Court adopted, the pictures
possessed by Appellant involve children
under the age of fifteen (record at 54 -
see Appellee’s Statement of the Case
which is below any definition of
“minority” under Ohio law thus obviating
the need for any alleged “change in
defensive tactics" based on the
definition of “minor.”
2. The Ohio § Court Properl
Although 0.R.C. Section 2907.323 is
silent on the issue of scienter, 0O.R.C.
Section 2901.21(B) provides that when a
section defining a criminal offense does
not specify a specific degree of mental
culpability, a mental state of
“recklessness” is required for the
person to be guilty of the offense,
unless there isa plain indication to
~\=
impose strict liability. Thus the
statute meets the requirement that, in
order to impose that criminal
responsibility, there must be some
element of scienter on the part of the
defendant. New York v. Ferber, supra,
at 765. The Ohio Supreme Court added no
new provision nor added or changed any
language; it merely read the statutory
scheme as a whole and applied the
scienter requirement as provided by Ohio
statutes.
3. The Ohio rpprene Court Eroperly
u
J; utiona. @quirements Bo
\ipp iy in tatute On. |
udgit' “Onset itu‘ L@WC
xnibitic J nvolves yraphic
5 . ery.t s
The Ohio Supreme Court construed
the elements of O.R.C. Section
2907.323(A)(3) to be consistent with the
requirements of New York v. Ferber.
The statute states as follows:
Illegal use of minor in nudity -
-42-
oriented material or performance. (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 persons child or ward in a state
of nudity,...." The Ohio Supreme Court
held that the statute as written was
"not so broad as to outlaw all
depictions of minors in a state of
nudity, but rather only those depictions
that constitute child pornography.”
This reading follows directly from the
language of the statute prohibiting
“nudity - oriented material or
performance.“ This must mean something
more than “mere nudity.” The Ohio
Supreme Court construed the terms as
consistent with the United States
Constitution. It defined it as *...such
nudity constitutes a lewd exhibition or
involves a graphic focus on the
genitals,...where the person depicted is
neither the child nor the ward of the
person charged. State v. Young, 525
N.E.2d 1363, 1368 (1988). The Court
arrived at this definition by reviewing
the statute and the exceptions to the
prohibited conduct:
It is true that [the statute]
does not expressly limit the
prohibited state of nudity to
a lewd exhibition or a graphic
focus on the genitals.
Furthermore, we are aware that
*..enudity, without more is
protected expression...,' even
where the citing wew™ depicted as
a child [cit New York v.
voreeee when the
exceptions
sot proper purposes" oe B.C.
2907.323(A)(3)(a) and (b) are
prohibi
significantly. , The clear
purpose ° these
exceptions...is to sanction
the possession or viewing of
material depicting nude ors
where that conduct is morally
innocent. Thus, the only
conduct prohibited the
statute is conduct which is
not morally innocent, ie., the
possession or viewing of the
described material for
prurient purposes. So
construed, the statutes
proscription is not so broad
as to outlaw all depictions of
-44-
minors ina state of nudity,
but rather only those
en which constitute
child pornography.’ Id. at
1357.
The statute as construed by the
Ohio Supreme Court prohibits conduct
which constitutionally may be
proscribed. The statute upheld in
Ferber, supra, prohibited "lewd
exhibition of the genitals.” Thus
nudity can be prohibited, consistent
with the Ferber, supra decision. The
construction of the Ohio Supreme Court
is plainly within such meaning.
B. O.R.C. Section 2507 .323(4) (3) Is
° s a rbr
The Appellant asserts that the
statute is substantially overbroad,
citing Broadrick v. Oklahoma, 413 U.S.
601 (1973). The Appellant’s assertion
is erroneous.
As an initial matter, it should ha
noted that the statute may be
constitutionally applied to this
-45-
Appellant. Although Appellant tries to
"soft peddle” the nature of the pictures
involved in its conviction as “nude
pictures" in his “personal photo album”
the pictures were of total strangers to
Appellant.
The brown photo album
contained numerous photographs
of nude males of various ages
and Osborne admitted that he
had taken some of i those
photographs. (Joint Appendix
of the judgment rendered by
the Ohio Supreme Court 12:
hereinafter J.A.).
® * °
State’s Exhibits 1A through
1C were Polaroid photographs,
and State’s Exhibit 1D had the
notation on the back of the
photogr of “Tommy - 13".
(J.A. 9, 1).
State’s Exhibits 1A through
1C depict the same young male
child on a bed in various
poses, which child Osborne
stated was 14 years of age
when the photographs were
taken. (J.A. 13, 14, 16).
In State’s Exhibit 1A the 14
year old boy is depicted
laying on his back in a
provocative pose in a bed with
his legs spread apart, and
-46-
with an erect penis that
Osborne described asa “hard
on” (J.A. 20). The boy is
holding something in his hand
that Osborne described as
electrical, with a cord
attached to it. (J.A. 20).
State’s Exhibit 1B depicts
the same 14 year old boy in an
almost gymnastic pose on the
bed with his hands behind his
head and his arms looped
between the inner part of the
knee with his stretched and
exposed anus in graphic focus.
In State’s Exhibit 1C this
14 year old boy is depicted on
the bed with his legs
aqocas-enuees and in one of
s hands placed into his anus
is an item Osborne identified
as a “dildoe”, but noted that
"you can’t tell from the
picture whether there’s any
penetration.” (J.A. 21). On
the bed inthis shot is the
same electrical device shown
in State’s Exhibit 1A that
sander. (J.A.21) .
State’s _—- 1D is a
photograph of a different boy
who is standing with his hands
placed on his hips and a
aon er focus on the amale
tals. This photograph
depicts the boy only between
the shoulders andthe knees.
(J.A. 9). On the back of this
Exhibit is the notation “Tommy
_ 43°. (J.A. 9, 19). The
-47-
background in this photo
matches the background in the
three Polaroid photos of the
14 year old boy.
Osborne did not know the
young boys in these
photographs, and he was not
their parent or ward. (J.A.
22).
Osborne mounted these four
photos in his brown photo
album, kept these photographs
for at least three years, and
periodically looked at then.
(J.A. 15-16).
See, Appellees Statement of the Case.
In Ferber, supra, at 771, the court
held that the substantial overbreadth
doctrine of Broadrick v. Oklahoma,
supra, applies tothe First Amendment
analysis of child pornography
legislation. The court further noted
that “the scope of the First Amendment
overbreadth doctrine, like most
exceptions to estaolished principles,
must be carefully tied to the
circumstances in which the facial
invalidation of a statute is truly
warranted. Because of the wide-reaching
effects of striking down a statute on
its face at the request of one whose
conduct may be punished despite the
First Amendment, we have recognized that
the overbreadth doctrine is ‘strong
medicine’ and have employed it with
hesitation, and then only as a last
resort.” Ferber, supra, at 769. The
application of the overbreadth doctrine
becomes even more attenuated where, as
here, behavior moves from “pure speech"
toward conduct and the conduct is within
valid criminal laws that reflect a
legitimate state interest. “Although
such laws, if too broadly worded, may
deter protected speech to some unknown
extent, there comes a point where that
effect -- at best a prediction --
cannot, with confidence justify
invalidating a statute on its face and
so prohibiting a state from enforcing
the statute against conduct if its
admittedly within its power to
proscribe. Id. at 770. Such a law
should not be held invalid for
overbreadth unless it reaches a
substantial number of impermissible
applications. Id. at 771. As noted by
Justice Scalia in his concurrence in
Massachusetts v. Oakes, 491 U.S. __,
105 L.Bd.2d at 505 (1989), “it is the
burden of the person whose conduct is
legitimately proscribable, and who seeks
to invalidate the entire law because of
its application to someone else to
‘ demonstrate from the text of [the law]
and from actual fact’ that substantial
overbreadth exists.’" New York State
Club Association v. New York City, 487
U.S. __, 101 L.Bd.2d 1, 108 &.Ct. 2225
(1988) (emphasis added). Appellant has
failed to demonstrate from the text and
from actual fact that the Ohio statute,
as authoritatively construed by the Ohio
Supreme Court “reaches a substantial
number of impermissible applications.”
“Facial overbreadth has not been
invoked when a limiting construction has
been or could be placed on the
challenged statute.” Broadrick, supra
at 613. Broadrick, upheld a
constitutional challenge to political
limitations on Oklahoma public employees
and discussed at length the effect of a
finding of “overbreadth” on the
enforcement of a statute. As noted in
Broadrick, where the construction of a
statute creates a narrower standard it
can continue to be enforced.
In the landmark case of Roth v.
United States, 354 U.S. 476 (1957),
wherein this Court first fashioned a
modern test for obscenity, the Court
upheld obscenity convictions of two men,
-5l-
one under federal law and the other
under a California statute. Both laws
were very broadly written. The federal
law prohibited every “obscene, lewd,
lascivious, or filthy book, pamphlet,
picture, paper, letter, writing, print,
or other publication of an indecent
character” from being mailed. Roth,
supra, at 479, n.l. The California law
prohibited the production, sale or
advertising of any “obscene or indecent”
material. Id., n.2. This Court in Roth
limited prosecution to “obscene”
material that met this test: “whether
to the average person, applying
contemporary community standards, the
dominant theme of the material taken as
a whole appeals to prurient interest.”
That definition was more narrow than the
statutes under which the defendants were
charged and convicted. Yet the Court
affirmed the convictions despite
-52-
announcing for the first time that very
day a new constitutional standard.
Roth is directly applicable here.
In this case, if the Appellant “charted
his course of conduct” by the pre-Ohio
Supreme Court construction of the
statute, he could not possibly_ be
prejudiced by prosecution under’ the
constructive definition. It should be
noted the the Ohio Supreme Court
decision laces a greater burden on the
state and causes no prejudice to the
Appellant.
Also see Pope v. Illinois, 481 U.S.
497, 501-02 (1987).
Nor can the fact that the Ohio
Supreme Court construed the _ statute
after conviction relieve Appellant from
the consequences of his conduct. Where
a state appellate court adopts a
limiting construction of a statute to
cure overbreadth, that statute may be
applied to conduct occurring prior to
the construction, as long as the
application affords fair warning to the
detendant. Dombrowski v. Pfister, 380
U.S. 479, 491, m.7 (1965).
Appellant had fair notice that the
conduct he engaged in was prohibited by
statute. The pictures involved were not
pictures of a “baby on a bear skin rug”
but, as described above, involved nude
depictions focusing on children with
their legs spread apart, erect penises,
adjacent dildoes, and exposed anuses.
The “fair warning requirement
prohibits the states from holding an
individual criminal responsible for
conduct which he could not reasonably
understand to be proscribed." Rose v.
Locke, 423 U.S. 48, 49, (1975). It
cannot be doubted that the statute
provides sufficient notice that
Appellant’s conduct is proscribed;
-54-
therefore, his right to due process has
not been violated.
The terms “lewd exhibition” and
“graphic focus on the genitals” are not
in themselves overbroad. This Court has
already considered the construction to
be given to the term “lewd.” In U.S. v.
12 200-Foot Reels, 413 U.S. 123, 130 fn
7 (1973), this Court considered the
terms “obscene,“ “lewd,” “lascivious,”
“filthy,” “indecent,” or. “immoral” and
stated that “we are prepared to construe
such terms as limiting regulated
material to patently offensive
representations or descriptions of that
specific “hard-core" sexual conduct
given as examples in Miller _ -v.
California, 413 U.S., at 25." Lower
courts have also found the term “*lewd"
readily definable. In U.S. v. Wiegand,
812 F.2d 1239 (9th Cir. 1987) the
Defendant contented the term
“lascivious” was vague. The court held
that “lascivious” is no different in its
meeting than “lewd” a term whose
constitutionality was specifical upheld
in Miller, supra, and in Ferber, supra.
The term “graphic focus on the
genitals” is closely related to the term
“lewd.” The statute upheld by this
Court in Ferber included the term “lewd
exhibition of the genitals" within the
definition of “sexual conduct." 458
U.S. at 751. The Wiegand, supra, court
defined “lasciviousness” as a
characteristic of the exhibition and not
a characteristic of the child herself;
presented by the photographers as to
arouse or satisfy the sexual cravings of
a voyeur. Thus, the terms in the Ohio
statute as construed provide clear
limits to the conduct prohibited as
required by Ferber, supra. The Ohio
Supreme Court avthoritatively construed
O.R.C. Section 2907.323.(A)(3) as
consistent with the United States
Constitution. It did not add any new
elements to the crime nor did it
re-write the statute in any way.
Appellant also “complains because
the statute exempts parents and artists.
Appellant is neither a parent of the
children depicted in his pictures nor a
legitimate artist in possession of his
work. The exception does not render the
statute overbroad because it does not
prohibit conduct which must be
constitutionally permitted, but permits
conduct which may be i statutorally
proscribed. Although it may not have
been wise to exempt the classes
exempted, that is a decision left to the
legislature. Such exemptions are not
uncommon in obscenity statutes. See
Ripplinger v. Collins, 868 F.2d 1043
(1988) upholding the constitutiorality
-57-
of the Arizona state obscenity statutes
exemption of cable television. The
following cases have also upheld sundry
exemptions for clerks, projectionists,
churches, schools, universities,
libraries and museums on any ore of
several legislative goals. State v.
Martin, 719 S.W.2d 522 (Tenn. 1986);
4000 Asher, Inc. v. State, 716 S.W.2d
190 (Ark. 1986); Com. v. Stock, 499 A.2d
308 (Pa.Super 1985); State v. Baker, 711
P.2d 759 (Kan.App. 1985); Com v. Ferro,
372 Mass. 379, 361 N.E.2d 1234 (1977);
In re Kimbler, 100 Cal.App.3rd 453, 161
Cal.Rptr. 53 (1979); Com. v. Bono, 7
Mass.App. 849, 384 N.E.2d 1260; People
v. Illardo, 48 N.¥.2d 408, 423 N.Y.S.2d
470, 399 N.B.2d 59 (1979); State v.
Lesieure, 121 R.I. 859, 404 A.2d 457
(1979); State v. J.R. Distributors,
Inc., 82 Wash.2d 584, 512 P.2d 1049
(1973). Indeed, various exemptions from
state obscenity statutes are the rule,
not the exception. And see, A.L.I.
Model Penal Code and Commentaries, §
251.4(3), Appendix B.
CONCLUSION
For the foregoing reasons, the
Court should uphold The Ohio
legislature’s judgment that possession
of child pornography should be ciminal,
O.R.C. 2907.323(A) (3).
Respectfully submitted,
2845 BE. Camelback Rd.
Suite 740
Phoenix, AZ 85016
(602) 381-1322
Counsel for
Amicus Curaie
CERTIFICATE OF SERVICE
I hereby certify that three copies
of the foregoing Brief of Amicus Curiae
Children’s Legal Foundation have been
sent by U.S. Mail, Postage Prepaid, on
-his i ee day of September, 1989, to:
RANDALL M. DANA
S. ADELE SHANK
Ohio Public Defender Commission
8 East Long Street - llth Floor
Columbus, Ohio 43266-0587
JOHN QUIGLEY
DAVID GOLDBERGER
Clinical Programs
The Ohio State University
College of Law
1659 North High Street
Columbus, Ohio 43210
RONALD J. O'BRIEN
City Attorney
City Ball
90 West Broad Street
Columbus, Ohio 43215
All parties required to be served
have been served.
Counsel for
Amicus Curiae
APPENDIX A
Children’s Legal Foundation
——————
— — —
“protecting the innocence of children’
August 23, 1989
S. Adele Shank
Assistant Ohio Public Defender
Ohio Public Defender Commission
8 East Long Street - lith Floor
Columbus, OH 43266-0587
Re: Qsborne vy. Ohio, No.
68-5986
Dear Me. Shank:
I am Legal Counsel for Children’s
Legal Foundation, a national,
non-profit public interest
corporation based in Phoenix. CLF
has a 32-year history of opposing child
pornography and obscenity, frequently
in the U.8. Supreme Court, and desires
to file an amicus curiae brief in
support of the State of Ohio in the
above-styled case. Pursuant to Rule 36
of Rules of the Supreme Court of the
United States, I am seeking your
written consent to our filing such a
brief.
Please use the return Federal
Express envelope provided to let us
know of your decision. Thank you for
your prompt attention to this matter.
Sincerely, N
Len L. Munesil
Legal Counsel
LLM/ lak
Enclosures
I do K a0 not consent to the
filing of an amicus curiae brief by
Children’s Legal Foundation in
Qsborne v. Ohio, No. 886-5986.
S. Adele Shank
Assistant Ohio
Public Defender
APPENDIX B
ee any TE lil THREE Hi il
| 3 He Hi
Ta ee tt
‘ Hi nut Halts
ab adie
wes ——
oe
* eat Thm
Ce
for further legislative and public action. The
very novelty of child pornography as a matter
for public concern, however, requires at least
a@ general overview of the rise of the “kiddie
pera” tasustry, the netuse of end the rationale
the governmental to it, the effects
on the children involved, and the contours of
the industry's surviving components. That
overview must with attention to what
“child y” by definition is and
what it is not.
Drawings of children engaged in sexual in-
tercourse with adults date at least from an-
found in seventeenth century France.” Yet al-
though these portrayals or accounts be
deemed “obscene.” and ay ee ly
offend modern sensibilities ing the
mE ne SS
not “ ” in the
and sense that term has over
the past fifteen years. As defined by the
ee Sen Sepreme Guat &o Go 2008 de
ision, New v. Ferber, the category of
nual Gat ied aint aaa
visual sexual conduct by children
below a specified age.” It is clear from the
Court's language, and in al! statutory and
eS Se pth
td appropriate as a
aie d aad ae real chil-
dren.™
The basis for these limitations is evident
from the very nature of the outrage child
i
i
” is both
“obscenity.”
materials which
of “child
the
narrower than that
Broader in that it includes
are not “patently offensive,” which do not ap-
prurient interest of the average in-
dividual, “and which show children in
peal to the “
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American children. This wholly unantici-
pated by-product of the “pornography boom”
prompted an angry legislative response from
and nearly al! state legislatures—a
response that in itself seems to have reshaped
completely 2 nature of the child-
t try.
The governmental battle against sexual ex-
ploitation of children has been an ongoing,
evolutionary one, masked by an extraordinary
degree of consensus among legislators on
both the federal and state levels. Detailed
analysis of the wide array of statutes which
have resulted from this shared concern is be-
yond the scope of this report. Nevertheless, a
general review of applicable federal statutes,
along with attention to significant features of
importantly to understanding the substantia!
since 1977.
1. The Protection of Children from Sexual
Exploitation Act of 1977 (the “1977 Act”).*”
state commerce.*” The definition of the
phrase “sexually explicit” included any
conduct involving sexual intercourse of
any variety, bestiality, masturbation, sado-
masochistic abuse, or “lewd exhibition of the
genitals or pubic area.”** Stern penalties (10
years imprisonment and/or $10,000 fine)
were imposed for violating these provi-
sions,** and were made applicable, as well,
to parents or other custodians who knowingly
permit a child to participate in such produc-
tion ae
With regard to the traffic in child pornogra-
phy vt roduced, the 1977 Act took a
somewhat different proach. With the evi-
dence gathered at the centering over-
whelmingly on the commercial character of
such , Congress understandably di-
rected its prohibitions against the transporta-
tion, shipping, mailing, or receipt of child
poet oy 4 in interstate commerce “for the
purpose of sale or distribution for sale.”*”’
Thus bartering or simply away child
was not even if con-
through the mail. Further, constitu-
tional concerns led Congress to restrict the
application of these provisions to material de-
picting children engaged in “sexually ex-
plicit” activity, which was also “obccene”
under the Miller test. As under the produc-
tion provisions, the age limit for children pro-
tected was set at sixteen, and the penalties
were identical.**
2. Seen ae 7 2008 fe
“1984 Act”). Strong as it appeared to be on
its face, the 1977 Act was soon found by fed-
eral law enforcement officials to be of only
limited practical value. The production of
child cenchantigten ta char
acter that from 1978 to 1984 only one person
had been convicted under that portion of the
1977 Act.*' As for distribution of the mate-
rial, the traffic in child pornography went un-
derground after 1978, and commercial
magazines such as those shown to Congress
in pea A _ no longer available “over-the-
> poaay raphy outlets. Rather, as a
Postal official told Congress in 1982, the
“bulk of child pornography traffic is noncom-
mercial.”** This meant, as a Federal Bureau
of Investigation witness told the same hear-
ing, that federal enforcement of the 1977 Act
was “seriously impaired” by its “for sale” re-
quirements.‘** Further, the limitation of the
trafficking provision of the 1977 Act to “ob-
scene” child placed substantia!
obstacles in the path of prosecutors .**
Confronted by this evidence, and rein-
itations, Congress in May, 1984, ap
broad revision of the 1977 Act. es prod
1977 Act, and raised the age limit of protec-
tion to .”’ Provisions raising the
amount of potential fines were included ,‘*
along with new sections authorizing criminal
and civil forfeiture actions against viola-
law's reach in this area: only “visual depic-
— of children are criminally action-
41
The result of these revisions was a dramatic
increase in federal prosecutions. In the first
nine months after of the 1984 Act vir-
continued to produce few indictments, in
part because of the extraordinary difficulties
of investigation and proof, and in , per-
haps, because the more easily u traffick-
ing provisions often may be invoked against
suspected senbeee tan instead. It appears, in
any case, that the 1977 Act eCectively halted
the bulk of the commercial child
phy industry, while the 1984 revisions have
enabled federal officials to move against the
noncommercial, clandestine mutation of that
industry.
State Laws. The federal interest in protecting
children, of course, is secondary to that of the
states, which act as principal guardians
against the abuse or neglect of the young. It
was indeed a state law substantially broader
than the 1977 Act which prompted the land-
mark decision in New York v. Ferber.** States
To a substantial extent the states have exer-
cised that power. Nearly all ban the produc-
tion of child pornography, and an
overwhelming majority prohibit distribution
as well.** Most prohibit as well parental con-
esent or accession to use of children in sexu-
ally explicit materials, and many outlaw
facilitation of sexual exploitation through fi-
ing child pornography." Some, have
prohibited as well the possession of child
an extremely effective weapon
molesters.“*
Yet it is clear, too, that much remains to be
accomplished on the state level. Not all states
ban trafficking in child pornography, so that
it remains possible in some parts of this
country to distribute such materials intrastate
without fear of criminal penalty. Further, only
about half of the states protect children from
use in pornography until their eighteenth
birthday; in other states the age limit is set at
sixteen or seventeen.*” (This Commission
has determined, indeed, that such protec-
tions should, on a somewhat more limited ba-
sis, be extended to age twenty-one.)*™ Finally,
few states appear to have taken action to pro-
vide substantial assistance to victims of child
pornography—either through direct aid or
through encouraging private civil reme-
dies.** The primary role of states in caring for
children would seem to argue for their as-
sumption of the principal share of the burden
of providing such assistance.
The legislative assault on child pornogra-
phy drastically curtailed its public presence;
it has not, however, ended the problem. Sex-
ual exploitation of children has retreated to
the shadows, but no evidence before the Com-
mission suggests that children are any less at
risk than before. The characteristics of both
perpetrators and victims, combined with the
extremely limited state of professional under-
ae . ~ a ta j
is a passing
Those who sexually exploit children do so
for a wide range of reasons, and come from an
categories:
“preferential” molesters.“' The former are
people who act out of some serious sexual or
psychological, need, but choose children as
victims only when they are readily and safely
accessible. “Preferential” molesters, on the
other hand, are those with a clear sexual pref-
erence for children (“pedophiles” in common
erential” abusers child
and/or erotica almost as a matter of course. It
is unclear how large each of these respective
categories is, but it does seem apparent that
“preferential” child molesters over the long
term victimize far more children than do “sit-
uational” abusers.
The approaches adopted by various perpe-
trators also vary widely. The most recent re-
search on “child sex rings” indicates that they
range in structure from highly organized,
“syndicated” operations involving several
perpetrators and many children with produc-
tion of child pornography for sale or barter, to
“solo” operations in which children are
abused and photographed by only one perpe-
trator for his pleasure.“? Child pornography,
while serving primarily the perpetrator’s own
needs, is also useful for lowering the inhibi-
tions of other children being recruited by the
perpetrator.” Wholly commercial operations
appear to be extremely unusual, but are still
not unknown.“
The normal absence of commercial mo-
tives, and the strong sexual and/or psycho-
logical needs which push both situational
and preferential molesters toward sexual
abuse of children in pornography, suggest
that the demand for such material may be
somewhat inflexible. While situational abus-
ers may be steered away from children as vic-
tims, preferential abusers may not—and they
are prone, moreover, to far more frequent
abuse. However the criminal law, sex-
ual exploitation of seems likely to re-
main an irresistible temptation for some.
ee en,
tims seems inexhaustible as well. Children
used in pornography seem to come from every
class, religion, and family background; a ma-
jority are exploited by someone who knows
them by virtue of his or her occupation,“* or
a neighborhood, community or fam-
ily relationship. Many are too young to know
what has happened; others are powerless to
refuse the demand of an authority figure;
some seem to engage in the conduct “volun-
tarily,” usually in order to obtain desperately
needed adult affection.* Adolescents used in
pornography are often runaways, homeless
youth or juvenile prostitutes who may feel
with some justice that they have little choice
but to participate.“’ Thus it seems clear that a
large class of children and teenagers vulnera-
ble to use in pornography will continue to ex-
ist. Even redoubled e to teach children to
protect themselves from such involvement
will not wholly blunt the strong social, fam-
ily, and economic forces creating that vulner-
ability.
The rise of the child pornography “prob-
lem” took medical, social services and legal
communities as much by surprise as it did
Congress and the general public. It is only fair
to note, therefore, that what one witness
dubbed “conceptual chaos” is a serious obsta-
cle to progress against sexual exploitation of
fll have faced serious Tenatance from thei
—
thoughts that perhaps he did not tell
The study of novel investigative
a ies here ti.
is in its :w a
child itself is not sufficient
without use of the victim as a witness, to es-
tablish the prosecutor's case, parents are
likely to face an excruciating dilemma. Law-
yers and judges, like doctors and mental!
health professionals, remain largely ignorant
of how to respond to child pornography vic-
tims.
That A peor sap is ac, + maga be-
cause suffered by children in
ae often devastating, and always
significant. In the short term the effects of
such involvement include depression, sui-
.
i
F @
if
i
i
bieait
in
te
+8 Fab
fie
il
seemed
_ portant to examine possible approach to
the ctsto of de» law and crsvince to
victims. While limitations of time and re-
|
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AOI) RAY EAONOG Y 'SURISITION UH) WoO neem jo neeng jempay “soneR, jo
TABLE 3
Cycle
One of the most common nana at rat enema dw mpg Ym
is: “How does ———— ee
most common ways a child is to pornographic activity
(1) Parnography is shown to the child
for “eax education”
2 convince child 6 movies are taken of
ab a. et re - -
g Cycle of Pornography
(3) Child pare used w convince child (5S) Same of these sessions progress to
that other children are sexually sexual activity.
yt +,
(4) Child nay Sasntiane—
lowers child's '
Source: S. O Brien. Child Pornegraphy, 68. (1983).
+? eee ssion on Obscenity and Pornography 7-23 (1970).
oe.
389. i.
390. tt ]. Dover, Greek Homosexuality (19
See, description of P. ony arte A+ Idhood, pp. son ven (een) (diary. of Heroard, physician to Henri IV,
391
who set down graphic etal of veal “play” with the child Louis XIII).
456 U.S. 474, 746 (1982). ee ee ‘sexua! conduct’ proscribed must also be
euteble limited end described” id., and must not include mere “nudity.” Id., p. 765 n. 18. The New York statutes in
question, Penal Law 263.15, wes found to fit these requirements even though it tt included “lewd exhibition of the geni-
tals
” in its definition of proscribed sexual conduct. Id.. p. 773.
393. Lena eA eg emt “child noting the judgment of legislators end clinicians
that “the use of children as subjects of pornographic A peor y Snderwy4 to the physiological, emotional, and mental!
health of the child,” a judgment the Court found “easily passes muster under the First Amendment.” id., p. 758. Ferber
actual children have been used.
concurring) (no defense based on “serious value” should be allowed) with id., pp. 775-777 (Brennan, }., concurring in
Oo eT ae a defense required by First Amendment).
413 U.S. 15
397. pedo Bo <0, a ee Chapter 17
398. S. O’Brien, Child pornography, p. 60 (1963) (arrests by Los Angeles police). In August of 1973 the sexually
pm oh snuuhp cued bent tarnty tien Gah etn enaseenall while several other call-boy rings were also
yoar
399. See R. Lloyd, For Money or Love: Boy Prostitution in America (1977); C. Linedecker, Children in Chains 21
(1961).
400. People v Fixier, 128 Cal. Rptr. 363, 56 Cal. App. 3d 321 (2d Dist. 1976). —
401. Sera Exploitation of Chiko, Hig Before the Subcomm on the judiciary, U.S. House, 95th a
63 (1977) (statement of Investigator Lloyd Martin, Los Angeles Police Dep't) (hearings hereinafter referred to ~.
ay ne ee
402. For a reprint of the most influential articles See, Subcommittee on Crime Hearings, supra note 401, pp. 422-443.
I wer cern or LE CE CTC A TNE REET teen. en ee
Subcommittee on Crime Hearings, supra note 401; aoeeee yo yy po hg tee may
. on Education and Labor, U S Soe, Se. 8 st Sess. (1977) (hereinafter “Selec
ae Subcommittee Hearings”) ); (Protection of Chi idren Again <a fenasd eterno. tof the Stcomm
——— Delinquency, Comm. on the Judiciary, U.S. Senate, 95th Cong., 1 7) (hereinafter
‘Gy we
po S. Rep. No. 438, 95th Cong., ist Sess. 5 (1977).
405. ndinatnaentiesliiesen, on supra note 402, p. 4 3 (testimony of Dr. Judianne Denses-Gerer, Pres), Odys-
sey Institute).
406. Id., p. 59 (testimony of Lloyd Martin).
407. Id., p. 117 (statement of Michael Sneed, reporter, Chicago Tribune
408. Select Education Subcommittee Hearings, supra note 403, p. 116. (statement of Robin Lloyd
409. Id., pp. 42-43 (testimony of Lloyd Martin).
410. Foran exellent overview of the production of child in the Netherlands, Denmark and other north-
Pn tm ter ne ne ar ep ge mrad pore ato
America—see, Child Pornography and Pedophilia, Hrgs. Before the Perm. Subcommittee on Investigations, Comm. on
Governmental Affairs, U.S. Senate, or, 2d Sess; Part 1 (1964) (especially testimony of Kenneth }. Herrmann. }r..
and Michael jupp, and Toby Tyler, id., pp. 322- a a a hr
Comm. on Investigations, Comm. on Governmental Affairs, U. S. Senate, 99th Cong., ist Sess., Part 2 (1965) (especially
ction of Eliot Abrams oa. mre of federal intregency group which World to Denar, The Netrand
and Sweden to to discuss problem of child pornography with government officials) (hearing hereinafter referred to
ee
For e more complete discussion and comparison of the relevant federa! statutes, see, Loken, The Federa! Battle
Aas Child Sec Bxplotition ae eg Harv. eo J. (1986).
. P. L. 95-225, 02 Stat. 7 (1978), codified, p C.S. $S2251-2253 (1979).
a. 18 U.S.C.S. ‘$2251(a) sare.
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APPENDIX C
; RECOMMENDATIONS FOR STATE LEGISLATION
RECOMMENDATION 45:
State legislatures should amend laws, where
necessary, to make the knowing possession of
child pornography, a felony.
;
Discussion
The United States Supreme Court has called
child pornography “a serious national prob-
lem.”*** In New York v.Ferber, the Court said
nent recard ofthe children’s participation in
sexual activity, and the circulation of the por-
nography exacerbates the harm to the chil-
dren. If the sexual abuse of children in
is to be curtailed the production
and distribution network must be elimi-
nated .***
Investigators have identified several uses of
child pornography. The first use by pe-
, is for sexual arousal and gratifica-
; tion.*** While some pedophiles only collect
7 a and fantasize through it,
: — it as a device to aid in the pro-
5 oun own child pornography.
P 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 view-
ing other children having “fun” participating
in the activity.** From a very age chil-
dren are taught to respect and believe mate-
rial contained in books and will thus have the
same beliefs about child pornography.*”
A pedophile offender will use child por-
nography in which the children appear to be
having a good time. The offender uses this
material to lower the inhibitions of the child
and entice him or her into a desired activity.
Children who view this material are also sub-
ject to a certain amount of peer pressure as
they see other children engaged in the activ-
ity.
Child is also used to illustrate
the activities in h the pecophile wishes a
child to engage.™ In such instances a pe-
offender shows the child the pornog-
raphy and asks the child to imitate the
pictures.
Pornographic
used to blackmail the child.** The pedophile
offender will use the pictures to intimidate
the child. The pedophile offender will
threaten the child with showing the pictures
to others if the child does not cooperate.
Child pornography is also seen as a valu-
pet nine | pedophiles. Visual
depictions may ‘ended ened betueen es!
lectors.** This subjects a child to repeated
victimization by countless numbers of pe-
dophiles and the child the object of the
pedophile's sexual fantasies.** Child pornog-
pe engi have originated as a home-
made item may eventually by sold to a
commercial child pornography publica-
tion.**
Child pornography has a life of its own. It is
The harms to children from child pornog-
raphy which the Supreme Court outlined in
New York v. Ferber occur as a result of the ex-
istence of the material itself.** The enactment
evidence of a suspected bookmaking opera-
tion.“* They located three reels of eight milli-
meter film in a desk drawer and upon viewing
the films, they charged the defendant with
possession of obscene matter.*’ He was con-
victed before a jury.“ The Court re-
versed the conviction and that “the mere
— Saneeap eens tho etate
phy to be unconstitutional % The analvsis
tional because the state could not punish the
mere private possession of magazines “which
depicted minors . . . engaging in sexual activ-
ity."** New York v. Ferber** was distin-
guished on the grounds that it dealt with
distribution and not mere possession of child
. In finding the statute uncon-
stitutional the Ohio court placed great signif-
icance on the language in Stanley where the
Supreme Court rejected the contention .~ ,
ey ape mea
obscenity, prem a bag odor f— aaa
In ed States v. Miller,” the United
States Court of for the Eleventh Cir-
against the possession
raphy is misplaced. Stanley upheld an
individual's right to privately possess ob-
scene material.™ The prevailing obscenity
it
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4
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eens Se eamiatin’ ox
the assertion made by the state of that
“exposure to obscene materials may to
deviant sexual behavior or crimes of sexua!
violence.”*” Mowever, the Court added in «
What we have said in no infringes upon
the power of the State or Government
to make of other items, such as nar-
cotics, or stolen goods, « crime. Our
in the case turns the
holding present ~ upon
involved in most statutes making mere pos-
session criminal.
Nor do we mean to express any opinion on
statutes making criminal possession of other
types of printed, filmed, or recorded materi-
als. See, e.g., 18 U.S.C. $793 (d), which
makes criminal the otherwise lawful posses-
sion of materials which “the possessor has
reason to believe could be used to the injury of
the United States or to the advantage of any for-
eign nation . . .” In such cases, compelling
reasons may exist for overriding the right of
the individual to possess those materials.*”
While Ferber admittedly dealt with a stat-
ute prohibiting the distribution of child
Heyn pean ane ty
=a5e gtat i wait
ett i 1 Hil
HALE fei FAH
shdhent ill
HHH Pa
536. Miami Hearing, Vol. |, William Dworin, p. 30.
537. Washington, D.C., Vol. Il, john, pp. 47-48.
458 U.S., (1 747.
538. , (1982), p. 74
530. See, e.g. “Sexual exploitation of a minor; classification A. A person commits sexual exploitation of # minor by
knowingly:
1. Recording, filming. photogrephing. developing or duplicating eny isual or print med wh
minors are engaged in sexual conduct.
2. Nistributing. transporting. exhibiting. selling. purchasing. possessing of exchanging eny
visual or print medium in which minors are in sexual conduct.
B Sexual exploitation of « minor is « class 2 felony.” Ariz. Rev. Stat. Ann. $13-3553( 1984);
“A person who has in possession « photographic representation of sexual conduct which involves « mi-
nor, knowing or with reasons to know its content and character and thet an actor or photographic subject in it.
guilty gross misdemeanor.” Minn. Stat. $617.247( 1984);
“A person who knowingly and willfully hes in his possession any film, photograph or other visual pre-
sentation depicting minors engaging in or simulating. or assisting others to engage in or simulate sexe
conduct is guilty of a misdemeanor” Nev. Rev. Stet. 730( 1964);
No person, with knowledge of the charecter of the material or performance involved, shall do any of
the following: :
5 Possess «© contro! any obscene material thet has e minor as one of its participants. With purpose to
violate division (A)(2) or (4) of this section.” Ohio Rev. Code Ann. $2907.321(1984). ,
540. v. Meadows, No. 64 CRB 25585. Slip op. (1st Dist. Dec. 18, 1985) cert. granted (Ohio Apr. 9. 1986) (No
om
541. 304 U.S., (1968), p. 55
542. Id. p. 558.
543. Id.
544. Id. pp. 5586-59.
545. Id. p. 559.
546. R.C. 2907.321(a)(5) (1985).
a Ohio v. Meadows, No. 64 CRB 25585, Slip op. (ist Dist. Dec. 1 . 1985), cert. granted, (Ohio Apr. 9. 1986) (No.
233).
52
:
re
pile
3
549. Ohio v. Meadows, No. 64 CRB 25585, Slip. op. (ist # Dist. Dec. 18, 1985); cert. granted, (Ohio Apr. 9, 1986) No.
66-233).
a aoe 47(1962).
. Ohio v. Meadows, No. 64 CRB 25585, Slip. op. at @ (1st Dist., Dec. 1 6, 1985), cert. granted (Ohio Apr. 9. 1986)
Id. at 7.
eee (11th Cir 1985), cert. denied. 54 U.S. L.W. 3698 (U.S. Apr. 22, 1966) (No. 65-1177).
Ae em the Child Protection Act provides penalties for any person who “knowingly receives or distrib-
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.