New York v. Ferber

From Wikipedia, the free encyclopedia

New York v. Ferbe

Argued April 27, 1982
Decided July 2, 1982


Full case name:	New York v. Ferber

Citations:	458 U.S. 747; 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, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr., William Rehnquist, John Paul Stevens, Sandra Day O'Connor

Case opinions

Majority by: White
Joined by: Burger, Powell, Rehnquist, O'Connor
Concurrence by: O'Connor
Concurrence by: Brennan
Joined by: Marshall
Concurrence by: Blackmun
Concurrence by: 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
2 Court's opinion
3 See also
4 External links

[edit] Background of the case

Paul Ferber owned an adult bookstore in Manhattan. He came to the attention of the police when he sold two films depicting boys masturbating to an undercover police officer. 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.

[edit] 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. Child pornography, however, may be banned without first being deemed obscene under Miller for five reasons:

Government has a very compelling interest in preventing the sexual exploitation of children.
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.
Advertizing and selling child pornography provides an economic motive for distributing child pornography.
Visual depictions of children engaged in sexual activity have negligible artistic value.
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.