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New York v. Ferber (1982)

New York v. Ferber (1982)
458 U.S. 747 (1982)
Vote 9-0

The Facts of the case are these: “A New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. The statute defines ‘sexual performance’ as any performance that includes sexual conduct by such a child, and ‘sexual conduct’ is in turn defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent bookstore proprietor was convicted under the statute for selling films depicting young boys masturbating, and the Appellate Division of the New York Supreme Court affirmed. The New York Court of Appeals reversed, holding the statute violated the First Amendment as being both underinclusive and overbroad. The court reasoned that, in light of the explicit inclusion of an obscenity standard in a companion statute banning the knowing dissemination of similarly defined material, the statute in question could not be construed to include an obscenity standard, and therefore would prohibit the promotion of materials traditionally entitled to protection under the First Amendment. The case is now before the Supreme Court for holding.”

The Main Issue of this case is this: 1. Does the First Amendment protect the material and the distribution of that material as it pertains to this case?

The Holding of this case found that: 1. “As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment.”

The Majority Opinion written by Justice White stated in part: “(a) The States are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons: (1) the legislative judgment that the use of children as subjects of pornographic materials is harmful to the psychological, emotional, and mental health of the child easily passes muster under the First Amendment; (2) the standard of Miller v. California, for determining what is legally obscene is not a satisfactory solution to the child pornography problem; (3) the advertising and selling of child pornography provide an economic motive for, and are thus an integral part of, the production of such materials, an activity illegal throughout the Nation; (4) the value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis; and (5) recognizing and classifying child pornography as a category of material outside the First Amendment’s protection is not incompatible with this Court’s decisions class of material, such as that covered by the New York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment’s protection. (b) The New York statute describes a category of material the production and distribution of which is not entitled to First Amendment protection. Accordingly, there is nothing unconstitutionally “underinclusive” about the statute, and the State is not barred by the First Amendment from prohibiting the distribution of such unprotected materials produced outside the State… Whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which [the statute’s] sanctions, assertedly, may not be applied.

Justice O’Connor wrote a Concurring Opinion in the case stating: “Although I join the Court’s opinion, I write separately to stress that the Court does not hold that New York must except ‘material with serious literary, scientific, or educational value… the compelling interests identified in today’s opinion, suggest that the Constitution might, in fact, permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions… Similarly, pictures of children engaged in rites widely approved by their cultures, such as those that might appear in issues of the National Geographic, might not trigger compelling interests identified by the Court. It is not necessary to address these possibilities further today, however, because this potential overbreadth is not sufficiently substantial to warrant facial invalidation of New York’s statute.”

Justice Brennan, with whom Justice Marshall joins, concurring in the judgment stating: “I agree with much of what is said in the Court’s opinion… the State has a special interest in protecting the wellbeing of its youth. This special and compelling interest, and the particular vulnerability of children, afford the State the leeway to regulate pornographic material, the promotion of which is harmful to children, even though the State does not have such leeway when it seeks only to protect consenting adults from exposure to such materials…”

Justice Stevens wrote, concurring in the judgment stating: “Two propositions seem perfectly clear to me. First, the specific conduct that gave rise to this criminal prosecution is not protected by the Federal Constitution; second, the state statute that respondent violated prohibits some conduct that is protected by the First Amendment. The critical question, then, is whether this respondent, to whom the statute may be applied without violating the Constitution, may challenge the statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the Court. I agree with the Court’s answer to this question, but not with its method of analyzing the issue…”

The significance of this case is that obscenity, non-obscenity, and child pornography were separated from each other. Obscenity, was judged to not be protected by the First Amendment, however, the standard of obscenity is and was highly disputed. Non-obscene things are protected by the First Amendment. Child Pornography, is not protected by the First Amendment, and can be regulated by the States, however that definition has been changed over time as well. Justice O’Connor’s opinion stating “pictures of children engaged in rites widely approved by their cultures…” while this would probably exclude things such as social nudism as not being widely approved by the culture and could be ruled obscene, these things would come to pass in future cases.

Legal Brief by David A.W. Hittle
May 3, 2013