New York v. Ferber

Brief Fact Summary.

Respondent, a proprietor of bookstore selling sexually oriented products, challenged the New York criminal statute prohibiting persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.

Synopsis of Rule of Law.

If depictions of children have slight social value and minimal literary, artistic, or scientific value to society and in fact causes harm to the society, they are not protected under the First Amendment.

Facts.

New York criminal statute prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. A sexual performance is defined as any performance which includes sexual conduct by a child less than sixteen years of age. Paul Ferber, the proprietor of a Manhattan bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted.

Issue.

Does the New York criminal statute prohibiting persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances violate the Constitution?

Held.

No, the category of material the New York statute includes and prohibits is not entitled to the First Amendment protection. A state’s interest in safeguarding the physical and psychological well being a minor is compelling and the distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to sexual abuse of children. Moreover, the statue is not substantially overbroad nor is it under-inclusive. Thus, the statute at issue is constitutional.

Dissent.

Justice Brennan

The application of the New York statute to depictions of children that in themselves have serious literary, artistic, scientific, or educational value, would violate the First Amendment. The Court’s assumption of harm to the child resulting from the permanent record and circulation of the child’s participation lacks much of its force where the depiction is a serious contribution to art or science. It is inconceivable how a depiction of a child that is itself a serious contribution to the world of art can be deemed material outside the protection of the First Amendment.

Concurrence.

Justice O’Connor

The Court dose not hold that New York must except material with serious literary, scientific or educational value from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York’s current statute is not sufficiently overbroad to support respondent’s attack. However, it is possible that New York’s statute is overbroad because it bans depictions that do not actually threaten the harms identified by the Court. Yet, it is not necessary to address these possibilities today because this potential overbreadth is not sufficiently substantial to warrant facial invalidation of New York’s statute.

Discussion.

The legislative judgment provides that the use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child and such judgment passes muster under the First Amendment. The advertising and selling of child pornography provides an economic motive for and is thus an integral part of the production of such materials, an illegal activity in this Nation. Also, the value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest. Thus, it is unlikely that visual depictions of children performing sexual acts would often constitute an important and necessary part of a literary performance. In addition, any conduct to be prohibited by the State must be adequately defined. Here, the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. Finally, the applications of the statute would not amount to more than a tiny fraction of materials within the statute’s reach and thus is not unconstitutional for being overly broad.