## Facts

- The Contemporary Arts Center (CAC) exhibited a retrospective of approximately 175 photographs by Robert Mapplethorpe.
- Prosecutors charged CAC and its director, Dennis Barrie, with violating Ohio’s obscenity law, R.C. 2907.32(A)(2), for promoting or exhibiting obscene material.
- The pretrial ruling addressed Count Two, based on five photographs depicting adult sadomasochistic sexual imagery that were displayed as part of the larger exhibition.
- CAC physically grouped the five photographs separately from the rest of the exhibition and did not reproduce them in the exhibition catalog.
- Defendants moved to dismiss Count Two, arguing (among other points) that the “taken as a whole” requirement in the obscenity test required judging the entire exhibition collectively and that R.C. 2907.32 was vague and overbroad.
- The City moved in limine to bar references to or admission of photographs not charged in Count Two, seeking to confine the case to the allegedly obscene photographs.
- The municipal court consolidated the motion to dismiss and the motion in limine for a pretrial decision.

## Issues

1. In an obscenity prosecution involving selected photographs within a larger museum exhibition, does “taken as a whole” require assessing the entire exhibition, or each charged photograph individually?
2. Is Ohio’s obscenity statute, R.C. 2907.32, unconstitutional as vague or overbroad, requiring dismissal of the obscenity count before trial?
3. May a court resolve disputed factual issues and affirmative defenses on a pretrial motion to dismiss in an obscenity case?
4. May the court, via motion in limine and a protective order, exclude references to uncharged artworks as inadmissible and likely to prejudice the jury?

## Decision

- The court held that each charged photograph must be evaluated separately for obscenity; the larger exhibition was not treated as the relevant “whole.”
- The court denied defendants’ motion to dismiss Count Two, concluding Ohio’s obscenity statutory scheme is constitutional when applied consistent with the governing obscenity standards.
- The court ruled that disputed factual questions concerning elements of the offense and affirmative defenses could not be decided on a pretrial motion to dismiss and must be resolved at trial.
- The court granted the City’s motion in limine and approved a temporary protective order to prevent introduction of inadmissible and prejudicial material, including references to uncharged photographs.

## Legal Principles

- For obscenity analysis, “taken as a whole” applies to the specific work charged as obscene; separate photographs in a larger exhibit may be treated as distinct works with independent content and context.
- Ohio’s obscenity law, R.C. 2907.32, is constitutional when construed and applied with the controlling obscenity framework.
- Pretrial dismissal is improper when the motion would require resolving contested facts or affirmative defenses that are for the factfinder at trial.
- A motion in limine, including a temporary protective order, is a proper pretrial tool to exclude inadmissible evidence where mere reference to the material would likely prejudice the jury.

## Conclusion

The municipal court required a photograph-by-photograph obscenity determination rather than treating the museum exhibition as a single work, rejected constitutional attacks on Ohio’s obscenity statute at the pretrial stage, refused to decide factual disputes and defenses on a motion to dismiss, and limited trial evidence to the charged photographs through a granted motion in limine and protective order.


City of Cincinnati v. Contemporary Arts Ctr., 566 N.E.2d 214 (Ohio Mun. Ct. 1990)