JUSTICE WHITE delivered the opinion of the Court.
In order to combat child pornography, Ohio enacted Rev. Code Ann. § 2907.323(A)(3) (Supp. 1989), which provides in pertinent part:
Petitioner, Clyde Osborne, was convicted of violating this statute and sentenced to six months in prison, after the Columbus, Ohio, police, pursuant to a valid search, found four photographs in Osborne's home. Each photograph depicts a nude male adolescent posed in a sexually explicit position.
The Ohio Supreme Court affirmed Osborne's conviction, after an intermediate appellate court did the same. State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988). Relying on one of its earlier decisions, the court first rejected Osborne's contention that the First Amendment prohibits the States from proscribing the private possession of child pornography.
Next, the court found that § 2907.323(A)(3) is not unconstitutionally overbroad. In so doing, the court, relying on the statutory exceptions, read § 2907.323(A)(3) as only applying to depictions of nudity involving a lewd exhibition or graphic focus on a minor's genitals. The court also found that scienter is an essential element of a § 2907.323(A)(3) offense. Osborne objected that the trial judge had not insisted that the government prove lewd exhibition and scienter as elements of his crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the
The Ohio Supreme Court denied a motion for rehearing, and granted a stay pending appeal to this Court. We noted probable jurisdiction last June. 492 U.S. 904.
The threshold question in this case is whether Ohio may constitutionally proscribe the possession and viewing of child pornography or whether, as Osborne argues, our decision in Stanley v. Georgia, 394 U.S. 557 (1969), compels the contrary result. In Stanley, we struck down a Georgia law outlawing the private possession of obscene material. We recognized that the statute impinged upon Stanley's right to receive information in the privacy of his home, and we found Georgia's justifications for its law inadequate. Id., at 564-568.
Stanley should not be read too broadly. We have previously noted that Stanley was a narrow holding, see United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 127 (1973), and, since the decision in that case, the value of permitting child pornography has been characterized as "exceedingly modest, if not De minimis." New York v. Ferber, 458 U.S. 747, 762 (1982). But assuming, for the sake of argument, that Osborne has a First Amendment interests in viewing and possessing child pornography, we nonetheless find this case distinct from Stanley because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley. Every court to address the issue has so concluded. See, e. g., People v. Geever, 122 Ill.2d 313, 327-328, 522 N.E.2d 1200, 1206-1207 (1988);
In Stanley, Georgia primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers. 394 U. S., at 565.
"It is evident beyond the need for elaboration that a State's interest in `safeguarding the physical and psychological well-being of a minor' is `compelling'. . . . The legislative judgment, as well as the judgment found in relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment." Ferber, 458 U. S., at 756-758 (citations omitted). It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product,
Osborne contends that the State should use other measures, besides penalizing possession, to dry up the child pornography market. Osborne points out that in Stanley we rejected Georgia's argument that its prohibition on obscenity possession was a necessary incident to its proscription on obscenity distribution. 394 U. S., at 567-568. This holding, however, must be viewed in light of the weak interests asserted by the State in that case. Stanley itself emphasized that we did not "mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials . . . In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials." Id., at 568, n. 11.
Given the importance of the State's interest in protecting the victims of child pornography, we cannot fault Ohio for attempting to stamp out this vice at all levels in the distribution chain. According to the State, 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. Indeed, 19 States
Other interests also support the Ohio law. First, as Ferber recognized, the materials produced by child pornographers permanently record the victim's abuse. The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come. 458 U. S., at 759. The State's ban on possession and viewing encourages the possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.
Given the gravity of the State's interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography.
Osborne next argues that even if the State may constitutionally ban the possession of child pornography, his conviction
The Ohio statute, on its face, purports to prohibit the possession of "nude" photographs of minors. We have stated that depictions of nudity, without more, constitute protected expression. See Ferber, supra, at 765, n. 18. Relying on this observation, Osborne argues that the statute as written is substantially overbroad. We are skeptical of this claim because, in light of the statute's exemptions and "proper purposes" provisions, the statute may not be substantially overbroad under our cases.
Osborne contends that it was impermissible for the Ohio Supreme Court to apply its construction of § 2907.323(A)(3) to him — i. e., to rely on the narrowed construction of the statute when evaluating his overbreadth claim. Our cases, however, have long held that a statute as construed "may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendan[t]." Dombrowski v. Pfister, 380 U.S. 479, 491, n. 7 (1965) (citations omitted).
Like the Hamling petitioners, Osborne had notice that his conduct was proscribed. It is obvious from the face of § 2907.323(A)(3) that the goal of the statute is to eradicate child pornography. The provision criminalizes the viewing and possessing of material depicting children in a state of nudity for other than "proper purposes." The provision appears in the "Sex Offenses" chapter of the Ohio Code. Section 2907.323 is preceded by § 2907.322, which proscribes "[p]andering sexually oriented matter involving a minor," and followed by § 2907.33, which proscribes "[d]eception to obtain matter harmful to juveniles." That Osborne's photographs of adolescent boys in sexually explicit situations constitute child pornography hardly needs elaboration. Therefore, although § 2907.323(A)(3) as written may have been imprecise at its fringes, someone in Osborne's position would not be surprised to learn that his possession of the four photographs at issue in this case constituted a crime.
Because Osborne had notice that his conduct was criminal, his case differs from three cases upon which he relies: Bouie v. City of Columbia, 378 U.S. 347 (1964), Rabe v. Washington,
Likewise, in Rabe v. Washington, supra, the petitioner had been convicted of violating a Washington obscenity statute that, by its terms, did not proscribe the defendant's conduct. On the petitioner's appeal, the Washington Supreme Court nevertheless affirmed the petitioner's conviction, after construing the Washington obscenity statute to reach the petitioner. We overturned the conviction because the Washington Supreme Court's broadening of the statute was unexpected; therefore the petitioner had no warning that his actions were proscribed. Id., at 315.
And, in Marks v. United States, supra, we held that the retroactive application of the obscenity standards announced in Miller v. California, 413 U.S. 15 (1973), to the potential detriment of the defendant violated the Due Process Clause because, at the time that the defendant committed the challenged conduct, our decision in Memoirs v. Attorney General of Massachusetts, 383 U.S. 413 (1966), provided the governing law. The defendant could not suspect that his actions would later become criminal when we expanded the range of constitutionally proscribable conduct in Miller.
Finally, despite Osborne's contention to the contrary, we do not believe that Massachusetts v. Oakes, 491 U.S. 576 (1989), supports his theory of this case. In Oakes, the petitioner challenged a Massachusetts pornography statute as
Osborne contends that Oakes stands for a similar but distinct proposition that, when faced with a potentially overinclusive statute, a court may not construe the statute to avoid overbreadth problems and then apply the statute, as construed, to past conduct. The implication of this argument is that if a statute is overbroad as written, then the statute is void and incurable. As a result, when reviewing a conviction under a potentially overbroad statute, a court must either affirm or strike down the statute on its face, but the court may not, as the Ohio Supreme Court did in this case, narrow the statute, affirm on the basis of the narrowing construction, and leave the statute in full force. We disagree.
First, as indicated by our earlier discussion, if we accepted this proposition, it would require a radical reworking of our law. Courts routinely construe statutes so as to avoid the statutes' potentially overbroad reach, apply the statute in that case, and leave the statute in place. In Roth v. United States, 354 U.S. 476 (1957), for example, the Court construed the open-ended terms used in 18 U. S. C. § 1461, which prohibits the mailing of material that is "obscene, lewd, lascivious, indecent, filthy or vile." Justice Harlan characterized Roth in this way:
See also, Hamling, 418 U. S., at 112 (quoting the above). The petitioner's conviction was affirmed in Roth, and federal obscenity law was left in force. 354 U. S., at 494.
Second, we do not believe that Oakes compels the proposition that Osborne urges us to accept. In Oakes, JUSTICE SCALIA, writing for himself and four others, reasoned:
In other words, five of the Oakes Justices feared that if we allowed a legislature to correct its mistakes without paying for them (beyond the inconvenience of passing a new law), we would decrease the legislature's incentive to draft a narrowly tailored law in the first place.
Legislators who know they can cure their own mistakes by amendment without significant cost may not be as careful to avoid drafting overbroad statutes as they might otherwise be. But a similar effect will not be likely if a judicial construction of a statute to eliminate overbreadth is allowed to be applied in the case before the court. This is so primarily because the legislatures cannot be sure that the statute, when examined by a court, will be saved by a narrowing construction rather than invalidated for overbreadth. In the latter event, there could be no convictions under that law even of those whose own conduct is unprotected by the First Amendment. Even if construed to obviate overbreadth, applying the statute to pending cases might be barred by the Due Process Clause. Thus, careless drafting cannot be considered to be cost free based on the power of the courts to eliminate overbreadth by statutory construction.
There are also other considerations. Osborne contends that when courts construe statutes so as to eliminate overbreadth, convictions of those found guilty of unprotected conduct covered by the statute must be reversed and any further
Having rejected Osborne's Stanley and overbreadth arguments, we now reach Osborne's final objection to his conviction: his contention that he was denied due process because it is unclear that his conviction was based on a finding that each of the elements of § 2907.323(A)(3) was present.
The State concedes the omissions in the jury instructions, but argues that Osborne waived his right to assert this due process challenge because he failed to object when the instructions were given at his trial. The Ohio Supreme Court so held, citing Ohio law. The question before us now, therefore, is whether we are precluded from reaching Osborne's due process challenge because counsel's failure to comply with the procedural rule constitutes an independent state-law ground adequate to support the result below. We have no difficulty agreeing with the State that Osborne's counsel's failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state-law ground preventing us from reaching Osborne's due process contention on that point. Ohio law states that proof of scienter is required in instances, like the present one, where a criminal statute does not specify the applicable mental state. See n. 9, supra. The state procedural rule, moreover, serves the State's important interest in ensuring that counsel do their part in preventing trial courts from providing juries with erroneous instructions.
With respect to the trial court's failure to instruct on lewdness, however, we reach a different conclusion: Based upon our review of the record, we believe that counsel's failure to object on this point does not prevent us from considering Osborne's constitutional claim. Osborne's trial was brief: The State called only the two arresting officers to the stand; the defense summoned only Osborne himself. Right before trial, Osborne's counsel moved to dismiss the case, contending
The prosecutor informed the trial judge that a number of Ohio state courts had recently rejected identical motions challenging § 2907.323(A)(3). Tr. 5-6. The court then overruled the motion. Id., at 7. Immediately thereafter, Osborne's counsel proposed various jury instructions. Ibid.
Given this sequence of events, we believe that we may reach Osborne's due process claim because we are convinced that Osborne's attorney pressed the issue of the State's failure of proof on lewdness before the trial court and, under the circumstances, nothing would be gained by requiring Osborne's lawyer to object a second time, specifically to the jury instructions. The trial judge, in no uncertain terms, rejected counsel's argument that the statute as written was overbroad. The State contends that counsel should then have insisted that the court instruct the jury on lewdness because, absent a finding that this element existed, a conviction would be unconstitutional. Were we to accept this position, we would " `force resort to an arid ritual of meaningless form,'. . . and would further no perceivable state interest." James v. Kentucky, 466 U.S. 341, 349 (1984), quoting Staub v. City of Baxley, 355 U.S. 313, 320 (1958), and citing Henry
Our decision here is analogous to our decision in Douglas v. Alabama, 380 U.S. 415 (1965). In that case, the Alabama Supreme Court had held that a defendant had waived his Confrontation Clause objection to the reading into evidence of a confession that he had given. Although not following the precise procedure required by Alabama law,
To conclude, although we find Osborne's First Amendment arguments unpersuasive, we reverse his conviction and remand
JUSTICE BLACKMUN, concurring.
I join the Court's opinion. I write separately only to express my agreement with JUSTICE BRENNAN, see post, at 146, n. 20, that this Court's ability to entertain Osborne's due process claim premised on the failure of the trial court to charge the "lewd exhibition" and "graphic focus" elements does not depend upon his objection to this failure at trial.
I agree with the Court that appellant's conviction must be reversed. I do not agree, however, that Ohio is free on remand to retry him under Ohio Rev. Code Ann. § 2907.323(A)(3) (Supp. 1989) as it currently exists. In my view, the state law, even as construed authoritatively by the Ohio Supreme Court, is still fatally overbroad, and our decision in Stanley v. Georgia, 394 U.S. 557 (1969), prevents the State from criminalizing appellant's possession of the photographs at issue in this case. I therefore respectfully dissent.
As written, the Ohio statute is plainly overbroad. Section 2907.323(A)(3) makes it a crime to "[p]ossess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity." Another section defines "nudity" as
In short, §§ 2907.323 and 2907.01(H) use simple nudity, without more, as a way of defining child pornography.
Wary of the statute's use of the "nudity" standard, the Ohio Supreme Court construed § 2907.323(A)(3) to apply only "where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals." State v. Young, 37 Ohio St.3d 249, 252, 525 N.E.2d 1363, 1368 (1988). The "lewd exhibition" and "graphic focus" tests not only fail to cure the overbreadth of the statute, but they also create a new problem of vagueness.
The Court dismisses appellant's overbreadth contention in a single cursory paragraph. Relying exclusively on our previous decision in New York v. Ferber, 458 U.S. 747 (1982),
The New York law at issue in Ferber criminalized the use of a child in a " `[s]exual performance,' " defined as " `any performance or part thereof which includes sexual conduct by a child less than sixteen years of age.' " 458 U. S., at 751 (quoting N. Y. Penal Law § 263.00(1) (McKinney 1980)). " ` "Sexual conduct" ' " was in turn defined as " `actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.' " 458 U. S., at 751 (quoting § 263.00 (3)). Although we acknowledged that "nudity, without more[,] is protected expression," id., at 765, n. 18, we found that the statute was not overbroad because only "a tiny fraction of materials within the statute's reach" was constitutionally protected. Id., at 773; see also id., at 776 (BRENNAN, J., concurring in judgment). We therefore upheld the conviction of a bookstore proprietor who sold films depicting young boys masturbating.
The Ohio law is distinguishable for several reasons. First, the New York statute did not criminalize materials with a "graphic focus" on the genitals, and, as discussed further below, Ohio's "graphic focus" test is impermissibly capacious. Even setting aside the "graphic focus" element, the Ohio Supreme Court's narrowing construction is still overbroad because it focuses on "lewd exhibitions of nudity" rather than "lewd exhibitions of the genitals" in the context of sexual conduct, as in the New York statute at issue in Ferber.
In addition, whereas the Ohio Supreme Court's interpretation uses the "lewd exhibition of nudity" test standing alone, the New York law employed the phrase " `lewd exhibition of
Indeed, the broad definition of nudity in the Ohio statutory scheme means that "child pornography" could include any photograph depicting a "lewd exhibition" of even a small portion of a minor's buttocks or any part of the female breast below the nipple. Pictures of topless bathers at a Mediterranean beach, of teenagers in revealing dresses, and even of toddlers romping unclothed, all might be prohibited.
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. Many would characterize a photograph of a seductive fashion model or alluringly posed adolescent on a topless European beach as "lewd," although such pictures indisputably enjoy constitutional protection. Indeed, some might think that any nudity, especially that involving a minor, is by definition "lewd," yet this Court has clearly established that nudity is not excluded
The Ohio Supreme Court provided few clues as to the meaning of the phrase "lewd exhibition of nudity." The court distinguished "child pornography" from "obscenity," see 37 Ohio St. 3d, at 257, 525 N. E. 2d, at 1372, thereby implying that it did not believe that an exhibition was required to be "obscene" in order to qualify as "lewd."
Moreover, there is no longstanding, commonly understood definition of "lewd" upon which the Ohio Supreme Court's construction might be said to draw that can save the "lewd exhibition" standard from impermissible vagueness.
The Ohio Supreme Court, moreover, did not specify the perspective from which "lewdness" is to be determined. A "reasonable" person's view of "lewdness"? A reasonable pedophile's? An "average" person applying contemporary local community standards? Statewide standards? Nationwide standards? Cf. Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 133-134 (1989); Pope v. Ilinois, 481 U.S. 497, 500-501 (1987); Pinkus v. United States, 436 U.S. 293, 302-303 (1978); Smith v. United States, 431 U.S. 291, 300, n. 6 (1977); Miller v. California, 413 U.S. 15, 24 (1973); Mishkin v. New York, 383 U.S. 502, 508 (1966). In sum, the addition of a "lewd exhibition" standard does not narrow adequately the statute's reach. If anything, it creates a new problem of vagueness, affording the public little notice of the statute's ambit and providing an avenue for " `policemen, prosecutors, and juries to pursue their personal predilections.' " Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)); see also Houston v. Hill, 482 U.S. 451, 465, and n. 15 (1987).
The Ohio Supreme Court also added a "graphic focus" element to the nudity definition. This phrase, a stranger to obscenity regulation, suffers from the same vagueness difficulty as "lewd exhibition." Although the Ohio Supreme Court failed to elaborate what a "graphic focus" might be, the test appears to involve nothing more than a subjective estimation of the centrality or prominence of the genitals in a picture or other representation. Not only is this factor dependent on the perspective and idiosyncrasies of the observer, it also is unconnected to whether the material at issue merits constitutional protection. Simple nudity, no matter how prominent or "graphic," is within the bounds of the First Amendment. 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,
In sum, the "lewd exhibition" and "graphic focus" tests are too vague to serve as any workable limit. Because the statute,
Even if the statute was not overbroad, our decision in Stanley v. Georgia, 394 U.S. 557 (1969), forbids the criminalization of appellant's private possession in his home of the materials at issue. "If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Id., at 565. Appellant was convicted for possessing four photographs of nude minors, seized from a desk drawer in the bedroom of his house during a search executed pursuant to a warrant. Appellant testified that he had been given the pictures in his home by a friend. There was no evidence that the photographs had been produced commercially or distributed. All were kept in an album that appellant had assembled for his personal use and had possessed privately for several years.
In these circumstances, the Court's focus on Ferber rather than Stanley is misplaced. 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 (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
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.
The Court today speculates that Ohio "will decrease the production of child pornography if it penalizes those who
At bottom, the Court today is so disquieted by the possible exploitation of children in the production of the pornography that it is willing to tolerate the imposition of criminal penalties for simple possession.
Although I agree with the Court's conclusion that appellant's conviction must be reversed because of a violation of due process, I do not subscribe to the Court's reasoning regarding the adequacy of appellant's objections at trial. See ante, at 122-125. The majority determines that appellant's due process rights were violated because the jury was not instructed according to the interpretation of § 2907.323(A)(3) adopted by the Ohio Supreme Court on appeal. That is to say, the jury was not told that "the State must prove both scienter and that the defendant possessed material depicting a lewd exhibition or a graphic focus on genitals." Ante, at 123. The Court finds that appellant's challenge to the trial court's failure to charge the "lewd exhibition" and "graphic focus" elements is properly before us, because appellant objected at trial to the overbreadth of § 2907.323(A)(3). See
But the Court does not rest there. Instead, in what is apparently dictum given its decision to reverse appellant's conviction on the basis of the first due process claim, the Court maintains that a separate due process challenge by appellant arising from the Ohio Supreme Court's addition of a scienter element is procedurally barred because appellant failed to object at trial to the absence of a scienter instruction. The Court maintains that § 2907.323(A)(3) must be interpreted in light of § 2901.21(B) of the Ohio Revised Code, which provides that recklessness is the appropriate mens rea where a statute " `neither specifies culpability nor plainly indicates a purpose to impose strict liability.' " Ante, at 113, n. 9, and
First, the overbreadth contention voiced by appellant must be read as fairly encompassing an objection both to the lack of an intent requirement and to the definition of "nudity." Appellant objected to, inter alia, the criminalization of the "mere possession or viewing of a photograph," without the need for the State to show additional elements. Tr. 4. A natural inference from this language is that intent is one of the additional elements that the State should have been required to prove. There is no need to demand any greater precision from a criminal defendant, and in my judgment the overbreadth challenge was sufficient, as a matter of federal law, to preserve the due process claim arising from the addition of a scienter element. As the majority acknowledges, our decision in Ferber mandated that "prohibitions on child pornography include some element of scienter." Ante, at 115 (citing Ferber, 458 U. S., at 765). In Ferber we recognized that adding an intent requirement was part of the process of narrowing an otherwise overbroad statute, and appellant's contention that the statute was overbroad should be interpreted in that light. I find the Ohio Supreme Court's logic internally contradictory: In one breath it adopted a scienter requirement of recklessness to narrow the statute in response to appellant's overbreadth challenge, and then, in the next breath, it insisted that appellant had failed to object to the lack of a scienter element.
Second, even if appellant had failed to object at trial to the failure of the jury instructions to include a scienter element, I cannot agree with the reasoning of the Ohio Supreme Court, unquestioned by the majority today, that "the omission of the element of recklessness [did] not constitute plain error." 37 Ohio St. 3d, at 254, 525 N. E. 2d, at 1370. To the contrary, a judge's failure to instruct the jury on every element of an offense violates a " `bedrock, "axiomatic and elementary" [constitutional] principle,' " Francis v. Franklin, 471 U.S. 307,
Thus, I would find properly before us appellant's due process challenge arising from the addition of the scienter element, as well as his claim stemming from the creation of the "lewd exhibition" and "graphic focus" tests.
When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed. Mr. Osborne's pictures may be distasteful, but the Constitution guarantees both his right to possess them privately and his right to avoid punishment under an overbroad law. I respectfully dissent.
Nor do we find very persuasive Osborne's contention that the statute is unconstitutionally overbroad because it applies in instances where viewers or possessors lack scienter. Although § 2907.323(A)(3) does not specify a mental state, Ohio law provides that recklessness is the appropriate mens rea where a statute "neither specifies culpability nor plainly indicates a purpose to impose strict liability." Ohio Rev. Stat. Ann. § 2901.21(B) (1987).
We also do not find any merit to Osborne's claim that § 2907.323(A)(3) is unconstitutionally vague because it does not define the term "minor." Under Ohio law, a minor is anyone under 18 years of age. Ohio Rev. Code Ann. § 3109.01 (1989).
The dissent distinguishes the Ohio statute, as construed, from the statute upheld in Ferber on the ground that the Ohio statute proscribes " `lewd exhibitions of nudity' rather than `lewd exhibitions of the genitals.' " See post, at 129 (emphasis in original). The dissent notes that Ohio defines nudity to include depictions of public areas, buttocks, the female breast, and covered male genitals "in a discernibly turgid state." Post, at 130. We do not agree that this distinction between body areas and specific body parts is constitutionally significant: The crucial question is whether the depiction is lewd, not whether the depiction happens to focus on the genitals or the buttocks. In any event, however, Osborne would not be entitled to relief. The context of the opinion indicates that the Ohio Supreme Court believed that "the term `nudity' as used in R. C. 2907.323(A)(3) refers to a lewd exhibition of the genitals." State v. Young, 37 Ohio St.3d 249, 258, 525 N.E.2d 1363, 1373 (1988).
We do not concede, as the dissent suggests, see post, at 131, n. 5, that the statute as construed might proscribe a family friend's possession of an innocuous picture of an unclothed infant. We acknowledge (see n. 9, supra) that the statute as written might reach such conduct, but as construed the statute would surely not apply because the photograph would not involve a "lewd exhibition or graphic focus on the genitals" of the child.
At the same time, however, Ohio's list of "proper purposes" is too limited; it excludes such obviously permissible uses as the commercial distribution of fashion photographs or the simple exchange of pictures among family and friends. Thus, a neighbor or grandparent who receives a photograph of an unclothed toddler might be subject to criminal sanctions.
The Ohio Supreme Court did not say, "[W]here such nudity constitutes a lewd exhibition of or involves a graphic focus on the genitals." The noun "exhibition" does not take as a modifier the preposition "on," and the court's repeated reference to the "prohibited state of nudity" as "a lewd exhibition or a graphic focus on the genitals," id., at 251, 525 N. E. 2d, at 1367, leaves no doubt that its choice of words was deliberate. The Ohio court clearly meant the "lewd exhibition" standard to pertain only to nudity and not to displays of the genitals. See also ibid. (referring to "morally innocent states of nudity as well as lewd exhibitions").
But were the Court today correct that the Ohio Supreme Court intended to create a " `lewd exhibition' of the genitals" test, I would hardly be reassured. Indeed, such a confused approach by the Ohio Supreme Court, referring in one part of its opinion to "lewd exhibitions of nudity" and in another to "lewd exhibitions of the genitals," would create a great deal of uncertainty regarding the scope of § 2907.323(A)(3) and likely would render that statute void for vagueness. We, of course, are powerless to clarify or elaborate on the interpretation of Ohio law provided by the state court. See Freedman v. Maryland, 380 U.S. 51, 60-61 (1965).
In my judgment, even equating "lewd" with "obscene" would not adequately clarify matters because "the concept of `obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms." Paris Adult Theatre I v. Slaton, 413 U. S., at 103 (BRENNAN, J., dissenting); see also Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 133-134 (1989) (BRENNAN, J., concurring in part and dissenting in part); Pope v. Illinois, 481 U.S. 497, 507 (1987) (BRENNAN, J., dissenting); id., at 513-518 (STEVENS, J., dissenting).
Currently, several sections of the Ohio Revised Code outside the Sex Offenses chapter contain the term "lewd." See Ohio Rev. Code Ann. § 715.52 (1976) ("Any municipal corporation may . . . [p]rovide for the punishment of all lewd and lascivious behavior in the streets and other public places"); Ohio Rev. Code Ann. § 3767.01(C) (1988) (defining public "nuisance" as "that which is defined and declared by statutes to be such and. . . any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films or plate negatives [and so on, are exhibited]"); Ohio Rev. Code Ann. § 4715.30(A) (Supp. 1989) (providing that "[t]he holder of a certificate or license issued under this chapter is subject to disciplinary action by the state dental board for . . . [e]ngaging in lewd or immoral conduct in connection with the provision of dental services"); Ohio Rev. Code Ann. § 4931.31 (1977) ("No person shall, while communicating with any other person any words or language of a lewd, lascivious, or indecent character, nature, or connotation for the sole purpose of annoying such other person").
The Ohio Supreme Court did not refer to any of these provisions in articulating its "lewd exhibition" standard, and they provide little guidance in deciphering the "lewd exhibition of nudity" test. Indeed, although the Ohio public nuisance statute, § 3767.01(C), contains the phrase "lewdness, assignation, or prostitution," it has been interpreted to refer only to conduct or behavior and not to photographs and other printed materials. See Ohio v. Pizza, No. L-88-045, 18 (Ohio Ct. App., Mar. 10, 1989), p. 18. Thus, Ohio has followed those States that have determined that "the term `lewdness' does not apply to persons who sell pornography." Chicago v. Geraci, 30 Ill.App.3d 699, 704, 332 N.E.2d 487, 492 (1975) (emphasis added); see also Chicago v. Festival Theatre Corp., 91 Ill.2d 295, 302, 438 N.E.2d 159, 161-162 (1982) (noting that various courts have held that " `lewdness, assignation, or prostitution' " abatement statutes are not applicable to obscene films or books).
The federal experience illustrates that possession laws are not an essential element of a successful enforcement strategy. In the Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. 95-225, 92 Stat. 7, Congress prohibited the production, distribution, and sale of material depicting sexually explicit conduct by minors. See 18 U. S. C. §§ 2251-2253 (1982 ed.). Congress also criminalized the mailing, receipt, or trafficking in interstate or foreign commerce of such material for the purpose of sale or distribution for sale. See 18 U. S. C. § 2252(a) (1982 ed.). But Congress did not criminalize mere possession. In the Child Protection Act of 1984, Pub. L. 98-292, 98 Stat. 204, Congress enacted a broad revision of the 1977 law, removing the requirement that trafficking, receipt, and mailing be for the purposes of sale or distribution for sale. See 18 U. S. C. § 2252(a). Further, the 1984 Act eliminated a requirement that material be "obscene" before its production, distribution, sale, mailing, trafficking, and receipt could be found criminal, see § 2252(a); raised the age limit of protection from 16 to 18 years of age, see § 2256(1); and added stiffer penalties, see § 2252(b), criminal and civil forfeiture provisions, see §§ 2253, 2254, and a civil remedy for personal injuries. See § 2255. Even in the 1984 amendments, Congress did not find it necessary to ban simple possession. Nevertheless, the Attorney General's Commission on Pornography determined that "the 1977 Act effectively halted the bulk of the commercial child pornography industry, while the 1984 revisions have enabled federal officials to move against the noncommercial, clandestine mutation of that industry." 1 U. S. Dept. of Justice, Attorney General's Commission on Pornography, Final Report 607 (1986) (hereafter Attorney General's Report).
Second, the Court maintains that possession of child pornography may be prohibited "because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity." Ante, at 111 (citing, in a footnote, the Attorney General's Commission on Pornography). The Attorney General's Commission, however, determined that pedophiles are likely to use adult as well as child pornography to lower the inhibitions of a child victim. See Attorney General's Report, supra n. 17, at 686; see also Brief for Covenant House et al. as Amici Curiae 8, n. 9 (characterizing the Court's argument on this point as "factual speculation"). Finally, Ohio's solution — prohibiting private possession — ignores fundamental principles of our First Amendent jurisprudence. "Assuming obscene material could be proved to create a . . . danger of illegal behavior, it would not follow that the expression should be suppressed. Rather, the basic principles of a system of freedom of expression would require that society deal directly with the . . . action and leave the expression alone." T. Emerson, The System of Freedom of Expression 494 (1970). See also Paris Adult Theatre I v. Slaton, 413 U. S., at 108-110 (BRENNAN, J., dissenting). Thus, while acts of sexual abuse themselves may be outlawed, the private possession of photographs, magazines, and other materials may not.