MADALA J
pornography cases to meet the particular circumstances. In Stanley v Georgia,141 the Supreme
Court struck down a Georgia law which outlawed the private possession of obscene material on
the ground that the State’s justifications for the law - primarily that obscenity would poison the
minds of its viewers - were inadequate. The court recognised that the statute impinged upon the
right to receive information in the privacy of one’s home. Justice Marshall, delivering the opinion
of the Court, stated:
If the First Amendment means anything, it means that a State has no business telling a man,
sitting alone in his own house, what books he may read or what films he may watch. Our whole
constitutional heritage rebels at the thought of giving government the power to control men’s
minds.142
However, in New York v Ferber,143 the Supreme Court upheld a New York statute outlawing the
distribution of child pornography for compelling state interests in protecting children. In Osborne
v Ohio,144 the Court upheld an Ohio statute proscribing the possession and viewing of child
pornography on the basis of the state’s compelling interests in protecting the physical and
psychological well-being of minors and in destroying the market for the exploitative use of
children by penalising those who possess and view the offending materials. It is this elasticity that
allowed the American courts to develop different principles in response to differing
circumstances.
[107] Although the issue of child pornography may not be directly in issue in the present cases,
and although it may even be the subject of litigation on another day, it is relevant to the question
141
394 US 557 (1969).
142
Stanley v Georgia (supra) at 565.
143
458 US 747 (1982).
144
495 US 103 (1990).
59
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