Does the Creation of Child Pornography Affect Free Speech?

The Ohio Supreme Court has decided to hold oral arguments next week in an effort to consider the meaning of the term “nudity” in state law child pornography prohibition. The appeals courts in Ohio have been divided regarding how the word should be interpreted in cases involving materials that have been developed, produced, or created showing nude minors.

The split in opinion stems from the views of the decision put forth by the Ohio State Supreme Court in the 1988 case State v. Young. This was a case in which a separate provision was reviewed by the Court. The provision bans the possession or viewing of material involving nude children. However, the provision allows the possession or viewing of these images if the minor is not their child, and only if they have written consent from the child’s parents. From the Young side of the court, this was believed to protect innocent conduct, but would still punish individuals who used the images for lewd acts or involved a direct, graphic focus on the minor’s genitals.

The current case involving Terry L. Martin, State v. Martin, focuses on the recording of an 11-year-old female as she was undressing for a shower, drying off, and then dressing. In 2013, Martin was convicted and sentenced to five years in prison for the production of illegal material that displayed a nude minor. Martin’s attorneys state that the governing law regarding producing and creating nude images of minors should also be limited to depictions of “lewd exhibitions or a graphic focus on the genitals.” They believe the statute is too broad, and is thus unconstitutional.

The state argues this assertion, stating that the First Amendment right of freedom of speech is not affected by the law and that the meaning of “nudity” in these cases does not need to be narrowed. Rather, the state believes that the statute legitimately regulates the creation of child pornography.

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