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New York v. Ferber

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Significance: In this case, the Supreme Court held that erotic and sexually explicit depictions of children, whether obscene or indecent, have no protection under the First Amendment.


The state of New York, like nineteen other states, had a statute that criminalized the dissemination of materials depicting the sexual conduct of children under the age of sixteen, regardless of whether the material satisfied the legal definition of obscenity established by the Supreme Court in Miller v. California (1973). The owner of a Manhattan adult bookstore, Paul Ferber, was prosecuted and convicted for selling films that depicted young boys masturbating. However, the New York Court of Appeals reversed his conviction, holding that the state statute violated the First Amendment because it criminalized materials that were simply indecent, not obscene. The state then appealed the case to the Supreme Court. The Court unanimously upheld Ferber's conviction in the lower New York court. Justice Byron R. White, writing for the Court, proclaimed that child pornography is “a category of material outside the protection of the First Amendment.” He emphasized five points. First, the state has a compelling interest in safeguarding minor children from sexual abuse and exploitation. Second, the distribution of child pornography is intrinsically related to this abuse and exploitation. Third, the sexual abuse and exploitation of children is illegal everywhere in the United States. Fourth, child pornography has very modest literary, artistic, scientific, or educational value. Finally, the recognition that a category of material is outside of First Amendment protection is compatible with previous decisions of the Court. Concluding that government has more discretion to prosecute child pornography than is true of adult pornography, White concluded that the standards may be less rigorous than the three-pronged test of the earlier Miller decision. He insisted, nevertheless, that state laws must clearly and explicitly define which kinds of photographs, films, and conduct are illegal. In a brief concurrence, Justice William J. Brennan, Jr., joined by Justice Thurgood Marshall, agreed that most child pornography did not merit First Amendment protection, but he nevertheless asserted that it would be unconstitutional to prosecute depictions of children that are of artistic or scientific value.