New York v. Ferber (1982)

New York v. Ferber (1982)

458 U.S. 747

In response to growing national alarm about the exploitation of children in the production of pornography, the State of New York enacted a law in 1977 that criminalized the production, direction, or promotion of “any performance which includes sexual conduct by a child less than sixteen years of age.” Paul Ferber, the proprietor of a Manhattan adult bookstore, was arrested and charged under the statute after an undercover police operation discovered that he was selling videos depicting two young boys engaged in a sexual act.

Opinion of the Court: White, Berger, Powell, Rehnquist, O’Connor.

Concurring in result: Blackmun.

Concurring opinion: O’Connor.

Concurring in the judgment: Brennan, Marshall; Stevens.

JUSTICE WHITE delivered the opinion of the Court.

. . . This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children. . . .

The Miller standard, like its predecessors, was an accommodation between the State’s interests in protecting the “sensibilities of unwilling recipients” from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.

First. It is evident beyond the need for elaboration that a State’s interest in “safeguarding the physical and psychological wellbeing of a minor” is “compelling.” Globe Newspaper Co. v. Superior Court (1982). “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Prince v. Massachusetts (1944). Accordingly, we have sustained legislation aimed at protecting the physical and emotional wellbeing of youth even when the laws have operated in the sensitive area of constitutionally protected rights. . . .

Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious, if not the only practical, method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.

. . . The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be “patently offensive” in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. “It is irrelevant to the child [who has been abused] whether or not the material … has a literary, artistic, political or social value.” We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem. . . .