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The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come. 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. covers a whole range of easily identifiable and constitutionally proscribable .

`It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.'" Id., at 761-762, quoting Giboney v. Indeed, 19 States have found it necessary to proscribe the possession of this material. First, as Ferber recognized, the materials produced by child pornographers permanently record the victim's abuse. The State's ban on possession and viewing encourages the possessors of these materials to destroy them.

In rejecting Osborne's contention that the trial court erred in not requiring the government to prove lewd exhibition and scienter as elements of his crime, the court emphasized that he had not objected to the jury instructions given at his trial and stated that the failures of proof did not amount to plain error. Ohio may constitutionally proscribe the possession and viewing of child pornography. 557 , which struck down a Georgia law outlawing the private possession of obscene material on the ground that the State's justifications for the law - primarily, that obscenity would poison the minds of its viewers - were inadequate. In any event, the statute, as construed by the Ohio Supreme Court, plainly survives overbreadth scrutiny. (b) It was not impermissible for the State Supreme Court to rely on its narrowed construction of the statute when evaluating Osborne's overbreadth claim.

Even assuming that Osborne has a valid First Amendment interest in such activities, this case is distinct from Stanley v. In contrast, Ohio does not rely on a paternalistic interest in regulating Osborne's mind, but has enacted its law on the basis of its compelling interests in protecting the physical and psychological well-being of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials. By limiting the statute's operation to nudity that constitutes lewd exhibition or focuses on genitals, that court avoided penalizing persons for viewing or possessing innocuous photographs of naked children and thereby rendered the "nudity" language permissible. Moreover, the statute's failure, on its face, to provide a mens rea requirement is cured by the court's conclusion that the State must establish scienter under the Ohio default statute specifying that recklessness applies absent a statutory intent provision. A statute as construed may be applied to conduct occurring before the construction, provided such application affords fair warning to the defendant.

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.

8 In our previous decisions discussing the First Amendment overbreadth doctrine, we have repeatedly emphasized that where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only "real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v.

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. The difference here is obvious: The State does not rely on a paternalistic interest in regulating Osborne's mind. 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.

4 We responded that "[w]hatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." Id., at 566. Under the Ohio Supreme Court reading, the statute prohibits "the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person charged." 37 Ohio St. In Ferber, we affirmed a conviction under a New York statute that made it a crime to promote the "`lewd exhibition of [a child's] genitals.'" 458 U. We noted that "[t]he term `lewd exhibition of the genitals' is not unknown in this area and, indeed, was given in Miller [v. 11 The Ohio Supreme Court also concluded that the State had to establish scienter in order to prove a violation of 2907.323 (A)(3) based on the Ohio default statute specifying that recklessness applies when another statutory provision lacks an intent specification. 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.

* [ Footnote * ] Briefs of amici curiae urging affirmance were filed for the Attorneys General for the State of Arizona et al. Celebrezze, Jr., Attorney General of Ohio, Andrew I. Braverman, and by the Attorneys General for their respective States as follows: Robert K. Webster of Missouri, Brian Mc Kay of Nevada, Roger A. Eikenberry of Washington; for the American Family Association, Inc., by Peggy M. 2 The Ohio Supreme Court denied a motion for rehearing, and granted a stay pending appeal to this Court. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the jury instructions given at his trial and the court did not believe that the failures of proof amounted to plain error. 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. 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.




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