Harry Blackmun

“ Even a photograph of a child running naked on the beach or playing in the bathtub might run afoul of the law, depending on the focus and camera angle.
In sum, the "lewd exhibition" and "graphic focus" tests are too vague to serve as any workable limit. Because the statute, even as construed authoritatively by the Ohio Supreme Court, is impermissibly overbroad, I would hold that appellant cannot be retried under it. ”

“ Furthermore, the Ohio law forbids not only depictions of nudity per se, but also depictions of the buttocks, breast, or pubic area with less than a "full, opaque covering." Thus, pictures of fashion models wearing semitransparent clothing might be illegal, [6] as might a photograph depicting a fully clad male that nevertheless captured his genitals "in a discernibly turgid state." The Ohio statute thus sweeps in many types of materials that are not "child pornography," as we used that term in Ferber, but rather that enjoy full First Amendment protection. ”

“ A well-known commercial advertisement for a suntan lotion shows a dog pulling down the bottom half of a young girl's bikini, revealing a stark contrast between her suntanned back and pale buttocks. That this advertisement might be illegal in Ohio is an absurd, yet altogether too conceivable, conclusion under the language of the statute. "Many of the world's great artists-Degas, Renoir, Donatello, to name a few-have worked from models under 18 years of age, and many acclaimed photographs and films have included nude or partially clad minors." ”

“ The Court today speculates that Ohio "will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand." Ante, at 109-110. Criminalizing possession is thought necessary because "since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution." ”

“ And if the law's purpose is preventing sexual abuse of children, it is underinclusive to the extent that it does not prevent parents from photographing their children↑ The notion that possession of pornography may be penalized in order to facilitate a prohibition on its production, whatever the rights of possessors, is not unlike a proposal that newspaper subscribers be held criminally liable for receiving the newspaper if they are aware of the publisher's violations of child labor laws. ”

“ The Court today finds Stanley inapposite on the ground that "the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley." Ante, at 108. The majority's analysis does not withstand scrutiny. [16] While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it. Indeed, the State already has enacted a panoply of laws prohibiting the creation, sale, and distribution of child pornography and obscenity involving minors. ”

“ Ferber held only that child pornography is "a category of material the production and distribution of which is not entitled to First Amendment protection," 458 U.S., at 765, 102 S.Ct., at 3359 (emphasis added) ; our decision did not extend to private possession. The authority of a State to regulate the production and distribution of such materials is not dispositive of its power to penalize possession. [15] Indeed, in Stanley we assumed that the films at issue were obscene and that their production, sale, and distribution thus could have been prohibited under our decisions. ”

“ I do not believe that the law is narrowly tailored to this end, for there is no requirement that the State show that the child was abused in the production of the materials or even that the child knew that a photograph was taken. Even if the State could recover all copies of the offensive picture, which seems highly unlikely, I do not see how a candid shot taken without the minor's knowledge can "haun [t] " him or her in the years to come, ibid., when there is no indication that the child is even aware of its existence. ”

“ As Justice WHITE remarked in a different context: " [T] he personal constitutional rights of those like Stanley to possess and read obscenity in their homes and their freedom of mind and thought do not depend on whether the materials are obscene or whether obscenity is constitutionally protected. Their rights to have and view that material in private are independently saved by the Constitution." ”

“ It might be objected that many of these depictions of nudity do not amount to "lewd exhibitions." But in the absence of any authoritative definition of that phrase by the Ohio Supreme Court, we cannot predict which ones. ”

“ But although the need to protect children from exploitation may be acute, it cannot override the right to receive the newspaper or to possess sexually explicit materials in the privacy of the home, especially when less restrictive alternatives exist to further the state interests asserted.↑ The Court's opinion should not be taken to mean that appellant's due process claim with respect to the "lewd exhibition" and "graphic focus" elements would be procedurally barred now had he failed to object at trial. ”

“ Michelangelo's "David" might be said to have a "graphic focus" on the genitals, for it plainly portrays them in a manner unavoidable to even a casual observer. Similarly, a painting of a partially clad girl could be said to involve a "graphic focus," depending on the picture's lighting and emphasis, [13] as could the depictions of nude children on the friezes that adorn our courtroom. ”

“ In short, §§ 2907.323 and 2907.01 (H) use simple nudity, without more, as a way of defining child pornography. [1] But as our prior decisions have made clear, " 'nudity alone' does not place otherwise protected material outside the mantle of the First Amendment." ”

“ The punishment of any vagrant, common street beggar, common prostitute, habitual disturber of the peace, known pickpocket, gambler, burglar, thief, watch stuffer, ball game player, a person who practices any trick, game, or device with intent to swindle, a person who abuses his family, and any suspicious person who cannot give a reasonable account of himself") (emphasis added) .↑ Virtually any act running afoul of "conventional" morality can be and has been sanctioned under "lewdness" laws. ”