Court Extends Child Porno Ban to the Home

States may outlaw sexually explicit photos of children even if the pictures are hidden away or viewed in the privacy of one’s home, the Supreme Court said Wednesday in ruling that the Constitution does not provide a free speech or privacy right in such cases.

The decision is likely to prompt California to enact more stringent penalties for possessing child pornography, the state’s chief assistant attorney general predicted.

In a 6-3 vote, the high court said that the only way to stamp out the underground market for child pornography is to allow prosecutors to go after it everywhere.

The decision closes a loophole in the law that had prevented some states, including California, from imposing strict criminal penalties for the possession of child pornography. In the 1969 case of Stanley vs. Georgia, the court ruled that, although marketing obscenity could be made a crime, adults could not be punished for keeping obscene photos in the privacy of their home.

In 1982, the court announced that it was taking a much tougher approach to pornography involving children. It ruled then that anyone who makes, sells, distributes or advertises sexually explicit depictions of children could be punished, even if the material was not clearly obscene. Left unanswered, until Wednesday, was the question of whether prosecutors could punish individuals who keep child pornography in their homes.

“Given the importance of the state’s interest in protecting the victims of child pornography,” Justice Byron R. White wrote, states are empowered “to stamp out this vice at all levels of the distribution chain.”

California Chief Assistant Atty. Gen. Richard Iglehart said that the high court decision is likely to spur the state Legislature to enact more stringent criminal penalties for possessing child pornography. Last year, the Legislature for the first time made it a misdemeanor to possess photos or films that depict sexual conduct by children under age 14.

But, because a first offense under the law is only a misdemeanor--not a felony--the penalties are limited to a year in jail and a $500 fine.

Moreover, police officers cannot get search warrants to seize such pornography from a home, even if they have strong evidence that it is there, Iglehart said. He added that the 1969 Supreme Court ruling made legislators wary of imposing stricter penalties.

“I would expect we will be able to get the Legislature to increase the penalties now. This should be a felony,” he said. Under the current law, a second conviction is a felony.

The Ohio child pornography law upheld by the high court Wednesday is much broader than the current California measure. While the California law focuses on photos depicting sexual conduct of children under age 14, the Ohio law makes it a crime to possess depictions of a minor under age 18 “in a state of nudity.”

Exceptions are made for parents or for photos that have “bona fide artistic, medical, scientific, educational, religious, government, judicial or other proper purpose.”

Eighteen other states have similarly strict laws against possessing child pornography, the court said.

The ruling could have an impact on the current legal fight in Cincinnati over the photographs of the late Robert Mapplethorpe. A grand jury on April 7 indicted a Cincinnati museum director, Dennis Barrie, for exhibiting seven allegedly obscene photos, two of which showed nude children. Barrie pleaded not guilty Monday. A pretrial hearing is set for April 30.

The National Coalition Against Pornography, based in Cincinnati, applauded the ruling and said it plans “vigorous efforts” to make possession of child pornography a criminal offense in every state.

“It is vital that we realize that there is no child pornography without there first being tragic molestation of a young child,” said Dr. Jerry Kirk, president of the anti-pornography organization.

The high court opinion brushed off objections that the broad wording of such an anti-pornography law could unfairly punish those who had no intent to break the law.

The ruling was made in the case of Clyde Osborne, 61, who was convicted of possessing pictures of a nude boy. His lawyers argued that the Ohio law could be read to punish someone who took a photo of a naked child at the beach.

However, Justice White said that Ohio appeals courts have said that child photos, to be pornographic, must be “lewd.”

Nevertheless, during Osborne’s brief trial, the issue of lewdness was not raised and should have been, the court said. On that limited basis, it ordered a new trial in the case (Osborne vs. Ohio, 88-5986).

Justices William J. Brennan Jr., Thurgood Marshall and John Paul Stevens dissented, contending that the Ohio law was vague and did not clearly spell out what kinds of depictions were illegal.

Meanwhile, the court also:

--Ruled that an overnight guest in a private home has the same rights to privacy as the homeowner. On a 7-2 vote, the court said that Minneapolis policemen erred by entering a private home without a warrant in a search for a murder suspect. Prosecutors argued that, because the home was not his, he had no right to be free from “unreasonable searches and seizures.” (Minnesota vs. Olson, 88-1916)

--Heard arguments in two major cases concerning the prosecution of child abuse. The justices must decide whether it violates the rights of a defendant accused of child molestation to permit child witnesses to testify on closed-circuit television.

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