New York v. Ferber

Brief Fact Summary. The Respondent, Ferber (Respondent), was convicted of distributing child pornography in violation of New York state law.

Synopsis of Rule of Law. Child pornography is obscene without exception.

Facts. Use of children in pornographic materials has increased over the years causing the introduction of many state laws prohibiting such activity. The Respondent was a storeowner who sold material showing children under the age of 16 engaged in sexual activities.

Issue. Is child pornography a form of obscenity that may be constitutionally restricted?

Held. Yes. The prohibition on the sale and distribution of child pornography is constitutional even if the material is not obscene.
Distribution of these materials is intrinsically related to child abuse.
Advertising and selling these types of materials provide an economic motive to engage in illegal activity.
The value of showing children engaged in sex is de minimis.
Concurrence. It is possible for some depictions of child sex acts to have serious literary, artistic, scientific or medical value.

Discussion. These laws protect the children from being exploited and abused. This protection of children is a legitimate state interest that outweighs an adult’s freedom to enjoy sexually explicit material.