New York v. Ferber

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
Prior history	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; certiorari granted, 452 U.S. 1052
Subsequent history	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
Concurrence	Stevens
Laws applied
U.S. Const. amend. I

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

Background of the case

Paul Ferber and Tim Quinn owned an adult bookstore in Manhattan. Ferber came to the attention of the police when he sold to an undercover police officer two films depicting boys masturbating. He was charged with violating a New York law that forbade the sale of any performance depicting sexual conduct of children under the age of 16. At trial he was convicted, and the conviction was affirmed by the intermediate appellate court. The New York Court of Appeals found that the First Amendment protected Ferber's conduct, and reversed the conviction. The State of New York asked the U.S. Supreme Court to review the case.

Court's opinion

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
• Stanley v. Georgia, 394 U.S. 557 (1969)
• Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), distinguishing virtual child pornography, as its creation does not abuse real children.

References

1. ^ David Hudson (1998-09-11). "Federal courts split over constitutionality of computer child porn law". First Amendment Center. http://www.firstamendmentcenter.org/news.aspx?id=8623. Retrieved 2009-06-12. 
2. ^ ^{a b c} Barton Aronson (2002-04-19). "FindLaw Forum: Despite Supreme Court ruling, other strict legal constraints on child porn and obscenity remain". CNN. http://edition.cnn.com/2002/LAW/04/columns/fl.aronson.obscenity.04.19/index.html. Retrieved 2009-06-12. 
3. ^ ^{a b} "Excerpts From Opinions in Ruling on the Child Pornography Prevention Act". New York Times. 2002-04-17. http://www.nytimes.com/2002/04/17/us/excerpts-from-opinions-in-ruling-on-the-child-pornography-prevention-act.html. Retrieved 2009-06-12. 

Further reading

• Colen, J. S. (1982). "Child Pornography: Ban the Speech and Spare the Child—New York v. Ferber". DePaul Law Review 32: 685. ISSN 00117188. 
• Woolsey, R. E. (1984). "Child Pornography and the Initial Impact of New York v. Ferber". Journal of Juvenile Law 8: 237. ISSN 01602098. 

External links

• Text of New York v. Ferber, 458 U.S. 747 (1982) is available from: Justia · Findlaw · OpenJurist