Lee v. Kemna, 534 U.S. 362, 18 (2002)

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Cite as: 534 U. S. 362 (2002)

Opinion of the Court

federal review had two bases. First, the dissent views as central to Osborne the "unforeseeab[ility]" of the Ohio Supreme Court's limiting construction of the child pornography statute at issue there, i. e., that court's addition of the "lewdness" element on which Osborne failed to request a jury charge. Post, at 397-398; see also post, at 399. The dissent here is characteristically inventive. Osborne spoke not of the predictability vel non of the Ohio Supreme Court's construction; instead, this Court asked whether anything "would be gained by requiring Osborne's lawyer to object a second time" on the question of lewdness, 495 U. S., at 124, and answered that question with a firm "no." Tellingly, Osborne noted, without criticism, the Ohio Supreme Court's own indication that the limiting construction of the child pornography statute was not unpredictable, for it flowed from the "proper purposes" exceptions set out by the Legislature. Id., at 113, n. 10.

Second, the dissent suggests that Osborne is enlightening only as to "Ohio's treatment of overbreadth objections." Post, at 398. Osborne, the dissent contends, "stands for the proposition that once a trial court rejects an overbreadth challenge, the defendant cannot be expected . . . to lodge a foreclosed objection to the jury instructions." Post, at 399. In truth, Ohio had no special-to-the-First Amendment "requirement." Ibid.9 Rather, Ohio's firmly established, generally applicable practice was a standard contemporaneous objection rule for challenges to jury charges. See Ohio Rule Crim. Proc. 30(A) (1989). As Osborne paradigmatically illustrates, that Rule is unassailable in most instances, i. e., it ordinarily serves a legitimate governmental interest; in rare

9 The discrete section of Osborne in point, Part III, cites no First Amendment decision; it relies solely on decisions holding asserted state-law grounds inadequate in other contexts. See Osborne v. Ohio, 495 U. S. 103, 122-125 (1990) (citing James v. Kentucky, 466 U. S. 341, 349 (1984); Davis v. Wechsler, 263 U. S. 22, 24 (1923); Douglas v. Alabama, 380 U. S. 415, 421-422 (1965)).


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