New York v. Ferber, 458 U.S. 747; 102 S. Ct. 2248; 73 L. Ed. 3d 1113 (1982)

Facts—New York prohibited knowing depiction of sexual performances by children or distribution thereof. Ferber, a proprietor of a Manhattan book- store, sold two films to undercover agents of young boys masturbating. A jury found him guilty on two counts, and the appellate division of the New York State Supreme Court affirmed, but the New York Court of Appeals reversed on First Amendment grounds, finding the law to be both under-inclusive and overbroad.

Question—Can a state prohibit the distribution of materials showing children engaged in sexual conduct, even if the material is not legally obscene?

Decision—Yes.

Reasons—J. White (writing for five justices in a 9–0 decision). Precedents have established that the First Amendment does not protect obscenity. Although Miller v. California (1973) established guidelines for obscenity, a state has greater leeway in regulating “pornographic depictions of children.” First, the state has a compelling interest in safeguarding the well-being of children. Second, the distribution of depictions of child sexual activity is related to child abuse both by preserving a permanent record of such abuse and by contributing to the “market” that allows the activity to flourish. Third, the sale and adverting of child pornography provides an economic motive that funds the illegal activity. Fourth, the value of such depictions “is exceedingly modest, if not de minimis.” Fifth, the decision is compatible with earlier rulings that specifically define prohibited conduct. Ferber is not in a position to challenge the statute for overbreadth, which does not appear substantial.

J. O’Connor, concurring, noted that the Court was not holding that it would make an exception for child pornography deemed to have serious literary, scientific, or educational value.

J. Brennan’s concurrence would, however, limit the law to cases where materials depicting children in sexual activity lacked serious value.

J. Stevens, in concurrence, stated the need to postpone decisions about possible exceptions to the Court’s ruling until such time as these decisions actually come to the Court.