495 U.S. 103 (1990)
In order to combat child pornography, Ohio enacted Revised Code Annotated section 2907.323(A)(3).1 The statute prohibits any person from possessing or viewing material or a performance that shows a minor who is not the person's child or ward in a state of nudity, unless certain exceptions for bona fide purposes or parental consent apply.2 Columbus, Ohio police officers conducted a valid search of petitioner Clyde Osborne's home and found four photographs.3 Each photograph depicts a nude male adolescent posed in a sexually explicit position.4 Osborne was convicted of violating the statute and sentenced to six months in prison.56
An intermediate appellate court affirmed Osborne's conviction.7 The Supreme Court of Ohio likewise affirmed.8 Relying on its construction of the statute, the Ohio Supreme Court rejected Osborne's claim that the First Amendment prohibits states from proscribing private possession of child pornography.910 The court also found that the statute, as narrowed to require a lewd exhibition or graphic focus on the genitals, is not unconstitutionally overbroad.11 The court held that scienter is an essential element of the offense.1213
Osborne objected that the trial judge had not required the government to prove lewd exhibition and scienter as elements of the crime.14 The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the jury instructions at trial and the court did not believe the failures amounted to plain error.1516
The Ohio Supreme Court denied a motion for rehearing and granted a stay pending appeal.17 The United States Supreme Court noted probable jurisdiction in June 1989.1819
Whether Ohio may constitutionally proscribe the possession and viewing of child pornography?20
States possess authority to criminalize private possession of child pornography when the prohibition advances a compelling interest in protecting minors from sexual exploitation and when the measure is reasonably calculated to reduce production by diminishing demand, a justification that distinguishes such laws from the insufficient interests asserted in Stanley v. Georgia.21
Yes. The established facts establish that to combat child pornography, Ohio enacted Revised Code Annotated section 2907.323(A)(3).22 The statute prohibits any person from possessing or viewing material or a performance that shows a minor who is not the person's child or ward in a state of nudity, unless certain exceptions for bona fide purposes or parental consent apply.
Columbus, Ohio police officers conducted a valid search of petitioner Clyde Osborne's home and found four photographs. Each photograph depicts a nude male adolescent posed in a sexually explicit position. Osborne was convicted of violating the statute and sentenced to six months in prison.
An intermediate appellate court affirmed Osborne's conviction. The Supreme Court of Ohio likewise affirmed. Relying on its construction of the statute, the Ohio Supreme Court rejected Osborne's claim that the First Amendment prohibits states from proscribing private possession of child pornography. The court also found that the statute, as narrowed to require a lewd exhibition or graphic focus on the genitals, is not unconstitutionally overbroad. The court held that scienter is an essential element of the offense.
Osborne objected that the trial judge had not required the government to prove lewd exhibition and scienter as elements of the crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the jury instructions at trial and the court did not believe the failures amounted to plain error. The Ohio Supreme Court denied a motion for rehearing and granted a stay pending appeal. The United States Supreme Court noted probable jurisdiction in June 1989. These facts demonstrate that the materials at issue record the exploitation of actual children and that the state's ban on possession serves to destroy the market for such materials and to prevent their use in further exploitation.23
Ohio therefore may constitutionally proscribe the possession and viewing of child pornography, as the established facts confirm that the statute targets materials whose production and circulation inflict direct harm on minors.
Whether Ohio Revised Code Annotated § 2907.323(A)(3) is unconstitutionally overbroad?24
A statute regulating expressive conduct is unconstitutionally overbroad only when its overbreadth is real and substantial when judged in relation to the statute's plainly legitimate sweep; a state supreme court's authoritative narrowing construction that limits the statute to lewd exhibitions or graphic focus on the genitals, together with a scienter requirement, removes any substantial overbreadth.25
No. The established facts show that the Ohio Supreme Court construed the statute to apply only where the nudity constitutes a lewd exhibition or involves a graphic focus on the genitals and where the defendant acts with scienter.26 This construction ensures that the statute reaches only materials that qualify as child pornography rather than innocuous depictions of nudity.27 The established facts further confirm that Osborne's photographs depicted nude male adolescents in sexually explicit positions, conduct that falls squarely within the narrowed prohibition and outside the zone of protected expression.28
The statute as construed is therefore not unconstitutionally overbroad.
Whether Osborne was denied due process because the jury instructions did not require the State to prove scienter and that the material depicted a lewd exhibition or a graphic focus on the genitals?29
Due process requires that a conviction rest on proof beyond a reasonable doubt of every element of the offense as defined by state law; when a state supreme court adds essential elements through construction, the failure to instruct the jury on those elements violates due process unless the defendant waived the claim through an adequate and independent state procedural ground.30
Yes in part. The established facts show that the Ohio Supreme Court held scienter and the lewd exhibition or graphic focus elements to be essential.31 Osborne failed to object to the omission of a scienter instruction, and that omission therefore rests on an independent and adequate state ground that bars review.32 With respect to the lewd exhibition element, however, Osborne's pretrial motion challenging the statute as overbroad preserved the claim; the trial court's rejection of that motion made a further objection to the instructions unnecessary, and the absence of an instruction on the element denied Osborne due process.33
Osborne's conviction must therefore be reversed and the case remanded for a new trial to ensure that each element of the offense as construed was proved to the jury.34