Cite as: 534 U. S. 362 (2002)
Kennedy, J., dissenting
525 N. E. 2d, at 1369, 1373 (citing Ohio Rule Crim. Proc. 30(A) (1989)).
When Osborne's case reached this Court, the parties' due process discussion focused on the merits, not the procedural bar. "It is a violation of due process," Osborne's brief argued, "where . . . a state supreme court adds new elements to save a statute and then affirms the conviction." Brief for Appellant, O. T. 1989, No. 88-5986, p. 25. Ohio's response, contending that the appellate court's limiting construction was "foreseeable," mentioned the procedural rule in a short, conclusory paragraph. Brief for Appellee, O. T. 1989, No. 88-5986, pp. 43-44. Against this backdrop, we decided the asserted procedural ground was adequate to block our assessment of the scienter claim but not the lewdness claim. Osborne v. Ohio, supra, at 125-126. This was not the watershed holding today's majority makes it out to be. The procedure invoked by the State with respect to lewdness required defendants in all overbreadth cases to take one of two steps, neither of which comported with established adequacy principles.
First, Ohio's primary contention was, as we noted, "that counsel should . . . have insisted that the court instruct the jury on lewdness" by proposing an instruction mirroring the unforeseeable limiting construction the Ohio Supreme Court would later devise. 495 U. S., at 124. To the extent the State required defendants to exhibit this sort of pre-science, it placed a clear and unreasonable burden upon their due process rights. Shuttlesworth v. Birmingham, 394 U. S. 147, 155-157 (1969); see also Osborne v. Ohio, supra, at 118 ("[W]here a State Supreme Court narrows an unconstitutionally overbroad statute, the State must ensure that defendants are convicted under the statute as it is subsequently construed and not as it was originally written"). Osborne might, for example, have guessed "obscenity" rather than mere "lewdness," or "focus on the genitals" without the additional "lewdness" option; yet according to the State,
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