Osborne vs Ohio

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NO. 88-5986 IN THE ~ u p r . e m e

OIourt o f tq e OCTOBER TERM

CLYDE

OSBORNE,

~ n i t

e l \

~ t a : t

e s

1989

Appellant,

v. STATE OF OIDO

Appellee.

O n Writ O f Certiorari To The

Supreme Court o f Ohio BRIEF AMICI CURIAE O F NATIONAL COALITION AGAINST PORNOGRAPHY CONCERNED WOMEN

AMERICA, FOCUS ON THE A M I ~ Y FAMILY RESEARCH COUNCIL, NATIONAL LEGAL FOUNDATION, ATHLETES FOR KIDS, NATIONAL CHRISTIAN ASSOCIATION AND THE BEREAN LEAGU LEAGUE, E, FOR

I N SUPPORT O F THE APPELLEE.

MARK

N. TROOBNICK* t ~ .

.. '

JORDAN W. LoRENCE CIMRON CAMPBEL CAMPBELL L

Concerned Women o r America 370 L 'Enfant Promenade SW Suite 800 Washington, D.C. 20024 (202) 488-7000 Counsel o Record

H ROBERT SHOWERS*

Gammon Grange 1925 K St. N W Suite 300 Washington, D.C. 20006 (202) 862-2000 WENDELL R .

BIRD

1150 Monarch Plaza 3414 Peachtree Lane Atlanta, Georgia 30326 (404) 264-9400

Reprinted by the National Coalition Against Pornography 800 Compton Road, Suite 9224 • Cincinnati, OR 45231 • (513) 521-6227

 

TABLE O F CONTENTS \TABLE O F C O N T E N T S

,  .

T A B L E O F AUTHORITIES •

l

\  , : . . . . . . . . . • • • • •

INTEREST OF AMICIS CURIAE

••

••

Page i u-v

1 2 4

. . . . . . . . . . . . • .

SUMMARY O F ARGUMENT. . . . . . . • . . . . . . . . . . . . . . . . . . . ARGUMENT

I.

C H I L D PORNOGRAPHY W H I C H I s C H I L D S E X U A L E X P L O I T T I O N I N P I C T U R E S HARMS C H I L D R E N

y

IT S P R O D U C T I O N D I S T R I B U T I O N A N D C O N  S U M P T I O N B E C A U S E I T Is A P E R M A N E N T R E C O R D I N G OF T H E I R S E X U A L A B U S E A N D T H E S E D U C T I O N T O O L OF C H O I C E F O R T H E C H I L D

4

MOLESTER

A. Evidence Clearly Reveals That Child Por nography Molest Mol estati ation onI s . Directly . . . . . . . . Connected . . . . . . . . . . .With . . . . .Child ..... B. Possession And Use Of Child Pornography Involv Inv olves es Substant Sub stantial ial Harm To Children C. Children Suffer Severe Psychological And Physical Harm From Production And Distribution O f Child Pornography (i) Psychological Harms To Children From Production (li) Physical Hanns To Children From Production (lii) Harms To Children From Distribution . . II

6 12

17

17 19

22

N E U R O C H E M I C A L E V I D E N C E SHOW S T H A T P E O 

PLE REACT DIFFERENTLY

PICTURES THAN T H E Y D o T o WORDS R A I S I N G N E W F I R S T A M E N D M E N T CONSIDERATIONS III

To

C R I M I N A L LAWS AGAINST POSSESSION OF C H I L D

P O R N O G R A P H Y D o N O T V I O L A T E S T N L E Y V. GEORGI A N D A R E C R I T I C A L To L A W E N F O R C E  M E N T T o E R A D I C A T E C H I L D PORNOGRAPHY A N D

15

T H E CORRESPONDING C H I L D MOLESTATION CONCLUSION





. . . .

APPENDIX. . . . . . . . . . . . . . • . . . • . . . . . . . . . . . . . . . . . . . . .

3

1a

 

23

\

t

ceable Legislation 12 U. Mich. J a ~ Reform 295, 301 1979) (hereafter cited as Use in P ~ r n o g r a p h y (increases the emotional and psychic harm suffered by the child'). Ferber 458 U . S.

at

759 n. 10.

Child pornography has a life of its own. The depictions are timeless and may be distributed and circulated for years after they are initially created. Each time the pornography is exchanged the children involved are victimized again. The harm to children from pornography occurs as a result of the existence of the material itself. According to the Commission on Pornography, t h e enactment of criminal penalties for the possession of child pornography is essential if these harms outlined in Ferber 458 U.S. a t 749, are to be effectively curtailed. Commission on Pornography a t 150-151. II.

NEUROCHEMICAL EVIDENCE SHOWS THAT P E O P LE REACT DIFFERENTLY TO PICTURES THAN THEY D O TO WORDS RAISING NEW FIRST AMENDMENT CONSIDERATIONS20

Visual Visu al data, wh whet ethe herr goo good d or o r bad, bad, true or fal false se,, app appear earss to be processed processe d as tr trut uth h immed immediate iately, ly, force forcefull fully y and with some degree of permanence, while competing print/speed is processed feebl feebly, y, o r in some some cases ca ses not no t a t all. 21 While visual depictions of ch chil ild d exploita exploitation tion shoul should d be trea tr eate ted d mor moree harshly ha rshly than th an writte wri tten n word word beca because use of its harm to the child victim, perhaps the negative and more powerful effect of visual image versus the print printed ed word on on the viewer/re viewer/reader ader gives gives additional additional weight to banning pictorial possession of child pornography. A s wa wass explored explor ed above, above, it is the th e use of pic pictu tures res which manipmanipulate and exploit exploit children children into into participat par ticipating ing with an adult ad ult in a sexual act. act. The There re is a growing body of scient scientific ific neurochemical neurochemic al resear res earch ch which shows shows that pictures are processed and retained retaine d by the brain in a different manner mann er than th an the th e writt writtQn Qn word word.. At least in the context of pictorial child pornography, therefore, Amici acknowledge and thank Dr. Judith Reisman for assistance in the development of thi s conce concept. pt. 2

her

valuable

21 See D. Galin, Educa Educating ting Both Halves Halves o/the Brain 53 Childhood Education 17 1976).

 

24

the Court should examine written First Amendment activity in a different light from pictorial activity. activity. \

Neurological research has shown that the brain is divided into two halves or hemispheres, the left and right, and each the brain half of the th eprocesses brain bra in performs fu nctions. ns. O ne half of primarily purely functio congnitive (written) information whil wh ilee tthe he oth o ther er half primarily processes visual visual informatio information. n. As one neurologist explains,

The two two cerebral cereb ral hemispheres hemi spheres are differently diff erently speciali specialized zed,, each performing a variety of tasks of which the other is ei eith ther er incapable incapable or o r able able to t o accompl accomplish ish with only only marginal facility. The left hemisphere is specialized for language comprehension and execution, verbal memory, and the numerical aspects of calculation, whereas the right hemi sphere is specialized for visual-spatial and visual percep tual function, nonverbal memory and comprehension, and execution of speech prosody. J. Cummings 9 Hemispheric Asymmetries in Visual-Percep Brain : Hemisphere Hemisphere tual and Visual-Spatial Function, in Dual Brain: Specialization i n Humans 233 D. Frank ed. 1985). In general, the left hemisphere is more more important impor tant for for language aand nd motor skills, while the right hemisphere does better with visual and spatial functions. functions. R. Restak, he Brain 248 1984). Research in the th e education fi fieeld al also so demon demonstr strates ates that there is substantively different responses by the brain to pictures than to printed words. 22 I n mu much ch the same manner manner,, adver advertise tisers rs are researching what stimulates the two hemispheres of the brain so that a product will be noticed and remembered. A t least one study quite logically suggests that an advertising campaign consisting of both written words and pictures may have ha ve the most success. Appel, Weinstein, and Weinstein, Weinstein, Brain Activity and Recall Recall ofTV Advertising, Advertising, 19 Journ Journal al of Advertis ing Research 8 1979). A mass commu communication nication specialist special ist noted: noted: The prin pr inte ted d word no longer has the power i t once did. . . the addictive, distortive Har ris,, Right Harris Right-Bra -Brain in Training: Training: S Some ome Refle Reflection ctionss on the Application of Research on on Cer Cerebr ebral al Hemispheric Speci Specializatio alization n to Educati Education, on, in rain Lateralization i n Children 211 (1988). 22

1

 

25

nature of imag images es are ar e vitally important realities t i n which to address th thee issue of freedom o speech. J. Reisroan, FreedCYm . f Speech as My Theology i n Electronic EnYjronment 3 New York Revi Review ew of Law and Soci Social al Change, Cha nge, 275-278 1979). A t the very l e a ~ t it is time to seriously reconsider the 19th century position that words and pictures pictu res are a re to be equated equate d on th thee same same.. First Amendment plane because they the y effect effect people i n the same manner. The common-sense reality of the situation (and now a growing body of scientific research) is that they do not, and therefore, different First Amendment protections should be afforded to each. I t is no accident that pedophiles revere the picture more more than the t he wo word rd.. The pictures of molestation stimu late them on a deeper deep er and stro st rong nger er leve level, l, be it neuro-chem neuro-chemical ical or psychological. The exploitation of a child i n a photograph, movie, or video is clear, devastating, and i t reta retains ins its depraved potency for those that possess and view it. is time to stem the tide of this terrible holocaust which claim cl aimss thousands thous ands of innocent children chil dren as its it s victims. Possession of pictorial child pornography cannot be given the same First Amendment protection protection as as writ wr itten ten depicti depiction on.. Intuition follows the old adage that a picture is worth a thousand words. Unfortunately, a single photograph of a molested child speaks volu vo lume mess about the t he tra t raged gedy y that has befallen that child. t

III.

CRIMINAL LAWS AGAINST POSSESSION OF CHILD P OR NOGR AP HY DO NOT V IO LA T E S T N L E Y V. GEORGIA AND ARE CRITICAL TO LAW ENFORCEMENT TO ERADICATE CHILD CHILD MOLESTATION PORNOGRAPHY AND THE CORRESPONDING

Stanley v. Georgia 394 U S 557 1969) has been repeatedly raised by criminal defendants as the Supreme Court case whic wh ich h constitutionally preven prevents ts passag passagee of la laws ws against agai nst posses sion of child pornography. The Ohio Supreme Court in Meadows, 28 Ohio St.3d answered this question persuasively by stating: •, Thus, Stanley has always stood f o r a n d stil stilll stands f o r the proposition that the sta state te may no not, t, cons consisten istentt with the First Amendment, regul regulate ate the th e mere private possession possession of material own home merely because is obscene. However,initone's is also significant to our inquiryitthat Justice

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