Osborne v. Ohio

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495 U.S. 103 (1990), argued 5 Dec. 1989, decided 18 Apr. 1990 by vote of 6 to 3; White for the Court, Blackmun concurring, Brennan, joined by Marshall and Stevens, in dissent. Osborne upheld a statute making it illegal to possess child pornography. An earlier case, Stanley v. Georgia (1969), had invalidated a statute prohibiting the private possession of obscene materials because the government's sole interest in prohibiting such possession, controlling the private thoughts of the owner, was not an interest the government was entitled to advance. The Court in Osborne said that banning the possession of child pornography protected the different interest of avoiding the exploitation of children against the harms of being used in pornography. Making private possession of child pornography illegal would reduce demand by destroying the market for exploitative use. The Court also held that the statute did not cover a substantial amount of constitutionally protected conduct because it had been construed to be limited to lewd depictions.

The dissenters argued that the statute remained unconstitutionally overbroad in its scope even after the narrowing construction. Osborne reflects the modern Court's discomfort with the prevalence of sexually explicit materials in American society, but its impact is limited because of the obvious importance of controlling the production of child pornography.

Mark V. Tushnet

Subjects: Law.

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