State v. Meadows

Wright, J.,

concurring. I concur in the judgment and syllabus only as the majority opinion does not come to grips with the alleged invasion of privacy of appellee. The Supreme Court of the United States has declared that child pornography does not enjoy the status of protected free speech. New York v. Ferber (1982), 458 U.S. 747.29 This should be a source of com*62fort to all our responsible citizenry. Likewise, the Ohio General Assembly has concluded that this type of material is contraband because it poses a danger to the health and safety of our children. Without equivocation I conclude that R.C. 2907.322(A)(5) is an appropriate exercise of the state’s police power under the stipulated facts of this case.30

However, I disagree with the majority’s holding that the intrusion into appellee’s privacy was “slight.” I believe that this statute creates a substantial intrusion into an individual’s privacy by limiting the visual material he can keep and view in his home. The United States Supreme Court recognized the extent of this intrusion in Stanley v. Georgia (1969), 394 U.S. 557, 564-565, in which it discussed an individual’s fundamental “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy,” and held that prohibition of private possession of written or visual materials in one’s own home is a “drastic invasion of personal liberties.” Since the court had previously held that “obscenity is not within the area of constitutionally protected speech,” Roth v. United States (1957), 354 U.S. 476, 485 [14 O.O.2d 331], the critical factor in Stanley was that the possession was within the privacy of an individual’s home. Furthermore, the court has consistently refused to extend this protection to obscenity outside the home. See Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49. The privacy invasion here is identical to that in Stanley, but the visual materials at issue are different.

The most explicit guarantee of privacy is found in the Fourth Amendment which affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The principles reflected in the Fourth Amendment “apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.” See Boyd v. United States (1886), 116 U.S. 616, 630; Payton v. New York (1980), 445 U.S. 573, 585. Since the alleged intrusion involved activities within appellee’s home, his privacy concerns cannot be dismissed without consideration.

However, while I cannot ignore appellee’s privacy claims, I believe that any right to privacy that appellee may have in his own home is not absolute. See Bowers v. Hardwick (1986), 478 U.S. __, 92 L. Ed. 2d 140. In my view Justice Hugo Black was correct as to the exceptions to and limitations on privacy rights. In his dissent in Griswold v. Connecticut (1965), 381 U.S. 479, 508-510,31 he stated:

*63“ * * * Strongly as I desire to protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford protection to the conduct of these defendants * * *.
“The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment’s guarantee against ‘unreasonable searches and seizures.’ But I think it belittles that Amendment to talk about it as though it protects nothing but ‘privacy.’ To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.
“ * * * I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. ” (Emphasis added.)

Thus, while the Fourth Amendment protects the sanctity of the home from governmental intrusion, “otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home.” Bowers v. Hardwick, supra, at 149. Stanley itself acknowledged that its holding provided no protection for the possession of drugs, firearms, or stolen goods in the home. Stanley v. Georgia, supra, at 568, fn. 11. Furthermore, the privacy interest expressed in Griswold is not without limitations. Just this past term in Bowers v. Hardwick, supra, the high court held that privacy protections do not extend to homosexual relationships between consenting adults in the privacy of the home, and declined to take a more expansive view of its authority to discover new fundamental rights imbedded in the Due Process Clause. Therefore, since protection of the home is not absolute, the competing interests involved must be examined. However, before proceeding with this examination, I note that this case does not involve traditional search and seizure issues. The material at issue was obtained with a search warrant, and no questions about the validity of this warrant have been raised.

*64The holding in Stanley did not extend to “statutes making criminal possession of other types of printed, filmed or recorded materials” (id. at fn. 11) and noted that “compelling reasons may exist for overriding the right of the individual to possess those materials” (id.). “Compelling” is the key word in this analysis. Regulations infringing on this privacy interest may be justified only by a compelling state interest and must be narrowly drawn to express only those interests. Carey v. Population Services Internatl. (1977), 431 U.S. 678. Child pornography is dangerous contraband which is intrinsically related to the sexual abuse and exploitation of children. New York v. Ferber, supra. In Ferber, the United States Supreme Court stated that “[i]t is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ ” is “ ‘compelling’ ” and explained that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 756-757.32 Thus, the materials at issue here, child pornography, can be distinguished from the mere obscenity involved in Stanley. Since the protection of children through the eradication of child pornography is a compelling interest and since R.C. 2907.322(A)(5) is sufficiently narrowly drawn to limit its application to child pornography, the statute’s intrusion into an individual’s significant privacy interest is not unconstitutional. Accordingly, I join in the reversal of the judgment of the court of appeals.

“When a definable class of material * * * bears so heavily and pervasively on the *62welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.” New York v. Ferber, supra, at 764.

It should be emphasized that our decision is confined to R.C. 2907.322(A)(5) and does not reflect upon the constitutionality of the remainder of R.C. 2907.322.

Although the Constitution does not explicitly mention any right of privacy, Griswold v. Connecticut, supra, spoke of zones of privacy emanating from penumbras of specific guarantees in the Bill of Rights which prevent government interference into personal deci*63sions in matters of marriage and contraception. See, also, Zablocki v. Redhail (1978), 434 U.S. 374. The Due Process Clause of the Fourteenth Amendment has also been construed to confer privacy rights to decisions involving procreation, childbirth, and family life. See Moore v. East Cleveland (1977), 431 U.S. 494; Carey v. Population Services Internatl. (1977), 431 U.S. 678; Roe v. Wade (1973), 410 U.S. 113.

See, also, FCC v. Pacifica Found. (1978), 438 U.S. 726, in which the court stated that the protection of children from exposure to profane or indecent material in radio broadcasts, a media “uniquely accessible to children” (id. at 749), was a primary concern and upheld the authority of the FCC to regulate indecent, non-obscene, broadcasts over radio or television.