concurring in the syllabus and judgment only. Appellee argues that obscenity and child pornography should be accorded the same treatment and, as such, mere private possession of child pornography may not be constitutionally proscribed. I do not agree. It is my judgment that child pornography is a separate category of unprotected speech and that banning private possession of depictions of children engaged in sexual acts does not require, as a condition precedent, a finding that such material is obscene. This conclusion is supported by the fact that although R.C. 2907.321(A)(5) prohibits the possession of material involving a minor if the material is obscene, R.C. 2907.322(A)(5), the statutory violation charged herein, prohibits the possession of material depicting minors involved in specified acts, with no mention of the word obscenity.22 The apparent rationale for this distinction is that in addition to those recognized state interests which support the regulation of obscenity, even stronger independent state interests exist which justify state regulation in the area of child pornography. That is, the state certainly has an overriding interest in protecting its children from debauchery, exploitation and sexual abuse, for solely economic purposes and perverse sexual gratification. These additional and different interests require this court to perform a separate balancing test. This test is different from that used by courts deciding the constitutionality of state laws prohibiting possession of adult pornography.
The very act of creating child pornography, in and of itself, is an abuse of children. Governmental authority to prevent child abuse certainly implies the authority to destroy the purely economic incentive to film the abuse itself, that incentive being the desire of the deviant to possess films of the sexual exploitation of children. As constitutional law expert and scholar Professor Laurence H. Tribe stated when addressing this issue23:
“Given the great difficulty of directly enforcing laws against the crimes being filmed (especially if faces are concealed), and given the lack of any economic incentive to commit such crimes apart from the market for films of their commission (contrast films of bank robberies, say), it seems insufficient to reply that government must pursue the less restric*57tive alternative of prosecuting the underlying crimes rather than prosecuting the filmmaker or indeed confiscating the film. ” (Emphasis added in part.)
While I agree with the judgment of the majority in this case, I arrive at my conclusion for different reasons.
The facts in this case are clear: the appellee was in his hotel room, his lawful residence, and in his room were magazines and a picture which depicted children engaged in sexual activity. The children depicted were “minors” within the meaning of R.C. 2907.322, and the magazines were in the private possession and control of the appellee as proscribed by the statute. There is no evidence, direct or indirect, that appellee sold, produced or disseminated the subject magazines, or that he participated in any activity that would provide grounds to broaden the allegations set forth in the complaint.24
In his motion to dismiss, appellee limited his constitutional attack upon the statute to the language in R.C. 2907.322(A)(5), which prohibits mere possession of sexually oriented material involving a minor. Appellee stipulated that the publications were unlawful in nature, viz., that they portray minors engaged in sexual activity. Accordingly, no question is raised as to whether the materials are in fact obscene.
Appellee contends that the decision of the United States Supreme Court in Stanley v. Georgia (1969), 394 U.S. 557, is determinative of the outcome of this case. In Stanley, the state of Georgia sought to impose criminal sanctions in a case involving mere possession of obscene materials depicting adults engaged in sexual activities. The court in that case held at 568:
“We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.”
Appellant herein challenges the relevance of the Stanley court’s holding, however, because in the case sub judice, the subject materials involved minor children. Appellant contends that child obscenity or pornography was not addressed by the Supreme Court until some thirteen years later in the case of New York v. Ferber (1982), 458 U.S. 747. Appellant urges that Ferber provides the law applicable to this case. In Ferber, the state’s petition for certiorari was granted to decide the single question:
“To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemination of *58material which shows children engaged in sexual conduct, regardless of whether such material is obscene?” (Emphasis added.)
The Supreme Court answered this question affirmatively. But appellee challenges the applicability of the pronouncements of the Ferber court, because the case does not address the constitutionality of a statute banning private possession of child pornography. I conclude that both cases provide guidance in deciding the question now before us, to wit: Whether R.C. 2907.322(A)(5), insofar as it makes criminal mere private possession of material that shows a minor participating in sexual activity, is violative of the First Amendment.
Although our “right to receive information and ideas, regardless of their social worth * * * is fundamental to our free society,” Stanley, supra, at 564; Winters v. New York (1948), 333 U.S. 507, 510, not all speech is protected. See, e.g., Schenck v. United States (1919), 249 U.S. 47, establishing the “clear and present danger” doctrine which renders unprotected, advocacy which incites to violence or illegal conduct; Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 572, holding as unprotected speech “ ‘fighting’ words,” “which by their very utterance inflict injury or tend to incite an immediate breach of the peace”; Beauharnais v. Illinois (1952), 343 U.S. 250, 266, holding that libel is not in the area of constitutionally protected speech. It is also true that relative to legislation in the area of sexually explicit material, obscenity is not within the contemplation of our First Amendment freedoms. Roth v. United States (1957), 354 U.S. 476, 485 [14 O.O.2d 331].
What is or is not obscenity is determined by application of the three-part test enunciated by the United States Supreme Court in Miller v. California (1973), 413 U.S. 15, 24:
“ * * * (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest * * * ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
It is well-established that the states retain broad power to regulate obscenity. Stanley, supra, at 568. The Supreme Court has recognized the states’ interest in avoiding the danger that obscene materials will fall into the hands of children, Ginsberg v. New York (1968), 390 U.S. 629 [44 O.O.2d 339], and the states’ interest in making sure that obscene materials do not intrude upon the sensibilities or privacy of the general public, Redrup v. New York (1967), 386 U.S. 767. The Supreme Court has held that these interests outweigh the First Amendment rights of promoters and distributors of such material. Miller v. California, supra, at 18-19; Stanley v. Georgia, supra, at 567; Jacobellis v. Ohio (1964), 378 U.S. 184, 195 [28 O.O.2d 101].
In explaining why society should be allowed to suppress obscene *59material, in contrast to merely protecting the right of a person to avoid it if they wished,25 the Supreme Court has offered three reasons: (1) “there is at least an arguable correlation between obscene material and crime,” Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 58; (2) states “have the power to make a morally neutral judgment” that public exhibition or commerce in obscene material tends to “injure the community as a whole” by polluting the “public environment,” id. at 68-69; and (3) “ ‘what is commonly read and seen and heard and done intrudes upon us all, want it or not.’ ” Id. at 59. However, the United States Supreme Court has also said that because a work is obscene does not mean that a state can impose absolute prohibitions. Notwithstanding the reasons cited above, the Stanley court stated at 564-565:
“ * * * [Fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy. * * * [M]ere categorization of * * * [materials] as ‘obscene’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home.” (Emphasis added.)
Clearly, the result of Stanley is that, although the states may have interests which outweigh the individuals’ right to express, i.e., to disseminate or promote obscenity in public, these reasons alone are insufficient to outweigh the individuals’ right to receive, i.e., observe or possess in private, obscenity involving adults. The Stanley court did recognize, however, that where reasons exist, sufficiently compelling in nature, even mere possession of some “types of printed, filmed, or recorded materials” may be proscribed consistent with individuals’ First Amendment rights. Stanley, supra, at 568, fn. 11. When considering this verbiage from Stanley, the holding and explanatory language of the Ferber court is significant. It is my belief that Ferber sets forth additional, independent state interests which, when balanced against the individual’s right to receive, observe, or possess child pornography, tip the scale in the states’ favor and provide constitutional authority for the enforcement of R.C. 2907.322(A)(5).
In Ferber, the court held at 756-757 that “ * * * the States are entitled to greater leeway in the regulation of pornographic depictions of children”26 because “[i]t is evident beyond the need for elaboration that a *60State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling’ * * *,” and, “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” (Citations deleted.) Accordingly, legislation aimed at protecting the physical and emotional well-being of children can be sustained even when laws operate in sensitive areas of constitutionally protected rights.27 In addition, the Ferber court recognized that greater regulatory leeway is justified in light of the intrinsic relationship between child pornography and child abuse. First, because “the materials produced are a permanent record of the children’s participation and [thus] the harm to the child is exacerbated by their circulation [id. at 759],” and second, because “the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.” Id. Since consumers of child pornography provide the economic incentive for production and distribution of this material, they are an essential part of the “distribution network” and should be subject to regulation.
Finally, the Ferber court noted, at 761-762, that:
“ ‘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.’ * * * ” (Citation deleted.)
Surely, First Amendment guarantees do not extend to speech, which relies for its expression upon the criminal exploitation of children. It is possible that one might question the validity of banning possession of adult obscene materials based upon the link purported to exist between the viewing of adult pornography and the subsequent commission of sex crimes. However, in my judgment, the link to crime and viewing which exists by virtue of the subjects being filmed, provides an absolutely convincing rationale for banning child pornography.
The Ferber court effectively classified child pornography as a category of speech like obscenity, libel or fighting words which lies outside the protection of the First Amendment.28 However, that classification, without *61more, does not accord states the right to prohibit the private possession of this material. As with adult obscenity materials, the First Amendment right to possess and view child pornography must be weighed against the interest of the state in regulating it. It is my judgment that, despite the significant infringement on a fundamental individual right to subject one’s self to whatever ideas or expressions one chooses, the interest of this state in protecting the emotional and physical well-being of its children far surpasses the First Amendment rights involved herein. It is the prerogative of this court to send a clear and unequivocal message to everyone involved in child pornography. There is no place for child abuse in a civilized, child-nurturing society, and if you traffic in or even privately possess child pornography in this state, Ohio intends to punish you. As noted by the United States Supreme Court in Prince v. Massachusetts (1944), 321 U.S. 158, 168:
“A democratic society, rests for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. * * * ”
Such must be the position and policy of this state. The state has a compelling interest in seeing that child pornography is eliminated in Ohio. The legislative response, in part, to accomplish this purpose is R.C. 2907.322(A)(5) which proscribes the private possession of material showing a minor participating in sexual activity. For the reasons stated, R.C. 2907.322(A)(5) does not violate the First and Fourteenth Amendments to the United States Constitution.
Accordingly, and for the foregoing reasons, I concur in the judgment of the majority of this court.
R.C. 2907.321(A)(5) reads:
“(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
<<* * *
“(5) Possess or control any obscene material, that has a minor as one of its participants; * * *” (Emphasis added.)
R.C. 2907.322(A)(5) reads:
“(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
* *
“(5) Possess or control my material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality; * * *” (Emphasis added.)
Tribe, American Constitutional Law (1978) 666, Section 12-16, fn. 62.
Appellant states in its brief:
“What is beyond question is that the Defendant did nothing more than possess within his home one or more magazines which depicted minors of unspecified age or sex, engaging in sexual activity. There is no indication, directly or by innuendo, that Meadows sold, produced, or disseminated the material possessed by him or participated in any activity that would broaden the accusation set forth in the Complaint.”
See Rowan v. United States Post Office Dept. (1970), 397 U.S. 728 wherein the Supreme Court upheld a statutory scheme that allowed individuals to exclude unwelcome mail.
The Ferber court stated at 764-765 that, “* * * the nature of the harm to be combated [child abuse] requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. The category of ‘sexual conduct’ proscribed must also be suitably limited and described.
*60“* * * We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. * * *” (Emphasis sic.)
See, e.g., Prince v. Massachusetts (1944), 321 U.S. 158, wherein the Supreme Court held that a statute prohibiting the use of a child to distribute religious literature was valid despite the statute’s infringement on valid First Amendment activities; and Ginsberg v. New York, supra, upholding a New York law protecting children from exposure to non-obscene literature (for adults) despite the statute’s effect on a First Amendment right.
The Ferber court at 761 concludes that child pornography may be regulated even though it does not meet the Miller test of obscenity. The court stated therein:
“The Miller standard, like all general definitions of what may be banned as obscene, does *61not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be ‘patently offensive’ in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. ‘It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value.’ Memorandum of Assemblyman Lasher in Support of § 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.” (Emphasis added; footnote deleted.)
Thus, it would be irrational to conclude that child pornography is subject to state regulation only on the basis that it is a form of obscene material. Child pornography is simply objectionable on its own.