Robert L. Ehrlich, Jr. letter to the editor, February 11, 1992

с JUDICIARY COMMITTEE GOVERNOR'S COUNCIL ON CHILD ABUSE AND NEGLECT MARYLAND JUVENILE JUSTICE ADVISORY COUNCIL Robert L. Ehrlich. Jr. TENTH LEGISLATIVE DISTRICT BALTIMORE COUNTY LEGISLATIVE PHONE: 841-3350 Legislative Address: Home Address: 5 ELPHIN COURT. B102 House of Delegates TIMONIUM. MARYLAND 21093 Annapolis , Maryland 21401-1991 February 11, 1992 A Tough Child Pornography Law Editor: Your readers should be aware that ground breaking anti-child pornography legislation will be resubmitted during this session of the General Assembly. Although a number of so-called "child porn" bills have passed the Maryland Senate in recent years, the House Judiciary Committee has killed them on the grounds that criminalizing mere possession of child pornography could not withstand a First Amendment challenge. The Supreme Court's recent holding in Osborne v. Ohio, where the court found that Ohio may constitutionally proscribe the possession and viewing of child pornography, together with the increasing number of states ’hat have passed similar legislation, are the primary reasons that the ouse committee may well take a different view during the 1992 session. In Osborne, the court held that Ohio's prohibition against possession and viewing of child pornography was not unconstitutionally overbroad and did not violate the First Amendment since the state has a "compelling" interest in protecting the physical and psychological well-being of minors. In essence, Osborne stands for the proposition that a narrowly drawn statute aimed at drying up the market for child pornography by penalizing even mere possession can withstand constitutional challenge. It is important to note that the Osborne majority took pains to dis¬ tinguish the case from a line of recent' .First Amendment cases where state laws aimed at the private possession of obscene materials were struck down as violative of one's right to receive information in the privacy of one's home. The critical portion of Justice White's majority opinion highlights the Ohio Supreme Court's interpretation that the challenged statute required the state to prove either a lewd exhibition or a graphic focus on the genitals of the child. These requirements serve to eliminate the fear that over-zealous prosecutors will seek to penalize persons (mostly parents) for viewing or possessing innocuous photographs of their naked children. Moreover, my bill contains a specific exception for these types -'f photographs.