Parties: Osborne v. Ohio
Date: 1990-04-18
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Paragraph: 70 - 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, 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. 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. See 394 U.S., at 559, n. 2, 89 S.Ct., at 1244, n. 2. Nevertheless, we reasoned that although the States "retain broad power to regulate obscenity"—and child pornography as well—"that power simply does not extend to mere possession by the individual in the privacy of his own home." Id., at 568, 89 S.Ct., at 1249. Ferber did nothing more than place child pornography on the same level of First Amendment protection as obscene adult pornography, meaning that its production and distribution could be proscribed. The distinction established in Stanley between what materials may be regulated and how they may be regulated still stands. See United States v. Miller, 776 F.2d 978, 980, n. 4 (CA11 1985) (per curiam ); People v. Keyes, 135 Misc.2d 993, 995, 517 N.Y.S.2d 696, 698 (1987). 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."
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Phrase match: their freedom of mind and thought
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Paragraph: 80 - 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.
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Phrase match: his right to possess them privately
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