New York v. Ferber

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New York v. Ferber
Supreme Court of the United States
Argued April 27, 1982 Decided July 2, 1982
Full case name	New York, Petitioner v. Paul Ira Ferber
Citations	458 U.S. 747 (more) 102 S. Ct. 3348; 73 L. Ed. 2d 1113; 1982 U.S. LEXIS 12; 50 U.S.L.W. 5077; 8 Media L. Rep. 1809
Case history
Prior	Defendant convicted at trial; conviction upheld by Appellate Division of the New York State Supreme Court. 74 App. Div. 2d 558, 424 N. Y. S. 2d 967 (1980); reversed by New York Court of Appeals, 52 N.Y.2d, at 681, 422 N.E.2d; cert. granted, 452 U.S. 1052 (1982).
Subsequent	Conviction affirmed
Holding
State interest in protecting children allows laws prohibiting distribution of images of sexual performances by minors even where content does not meet tests of obscenity.
Court membership
Chief Justice Warren E. Burger Associate Justices William J. Brennan Jr. · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell Jr. · William Rehnquist John P. Stevens · Sandra Day O'Connor
Case opinions
Majority	White, joined by Burger, Powell, Rehnquist, O'Connor
Concurrence	O'Connor
Concurrence	Brennan, joined by Marshall
Concurrence	Blackmun (in the result)
Concurrence	Stevens
Laws applied
U.S. Const. amend. I

New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the US Supreme Court, unanimously ruling that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.^[1]

Procedural background[]

New York had an obscenity law that made it illegal for an individual to "promote any performance which includes sexual conduct by a child less than sixteen years of age." Paul Ferber, an owner of an adult bookstore in Manhattan, was charged under the law after he sold an undercover police officer two films depicting young boys masturbating. He was charged with promoting both obscene sexual performances and indecent sexual performances. At trial, he was acquitted of the obscene sexual performance count but he was convicted of the indecent sexual performance count, and the conviction was affirmed by the intermediate appellate court. The New York Court of Appeals overturned the conviction, finding the obscenity law unconstitutional under the First Amendment because the law was both underinclusive as to other films of dangerous activity, and overbroad as to its application to materials produced out-of-state and non-obscene materials.

The Court's decision[]

The Court upheld the constitutionality of New York's obscenity law, ruling that it did not violate the First Amendment, and reversed and remanded the case.

For a long time before the decision, the Court had ruled that the First Amendment allowed the regulation of obscenity. Under the Court's previous decision in Miller v. California, 413 U.S. 15 (1973), material is "obscene" if, taken as a whole and applying contemporary community standards, it lacks serious scientific, literary, artistic, or political value, is "patently offensive" and aimed at "prurient interests".^[2] The court in Ferber found that child pornography, however, may be banned without first being deemed obscene under Miller^[3] for five reasons:

1. The government has a very compelling interest in preventing the sexual exploitation of children.^[2][3]
2. Distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children. The images serve as a permanent reminder of the abuse, and it is necessary for government to regulate the channels of distributing such images if it is to be able to eliminate the production of child pornography.
3. Advertising and selling child pornography provides an economic motive for producing child pornography.^[2]
4. Visual depictions of children engaged in sexual activity have negligible artistic value.
5. Thus, holding that child pornography is outside the protection of the First Amendment is consistent with the Court's prior decisions limiting the banning of materials deemed "obscene" as the Court had previously defined it. For this reason, child pornography need not be legally obscene before being outlawed.

See also[]

• List of United States Supreme Court cases, volume 458

References[]

Further reading[]

• Colen, J. S. (Spring 1982). "Child Pornography: Ban the Speech and Spare the Child—New York v. Ferber". DePaul Law Review. 32: 685. ISSN 0011-7188.
• Woolsey, R. E. (1984). "Child Pornography and the Initial Impact of New York v. Ferber". . 8: 237. ISSN 0160-2098.

External links[]

• Text of New York v. Ferber, 458 U.S. 747 (1982) is available from: CourtListener  Findlaw  Google Scholar  Justia  Library of Congress  Oyez (oral argument audio)