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New York v. Ferber

Citation. 458 U.S. 747 (1982)
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Brief Fact Summary.

Ferber, the owner of a bookstore specializing in sexually oriented products, was convicted under the New York Penal Law for selling films devoted exclusively to depicting young boys masturbating.

Synopsis of Rule of Law.

The States are entitled to greater leeway in regulating pornographic depictions of children than in regulating obscenity.


The New York Penal Law stated that a person is guilty of promote a sexual performance by a child, when knowing the character and content thereof, he produces or promotes any performance which includes sexual conduct by a child less than sixteen years of age. The law prohibited the distribution of material depicting children engaged in a sexual conduct.


Does the New York Penal Law stated that prohibits the distribution of material depicting children engaged in a sexual conduct violate the Constitution?


No, because the state’s interest in safeguarding the physical and psychological well being of a minor is compelling. Moreover, the distribution of photographs depicting sexual activity by minors is intrinsically related to the sexual abuse of children. The advertising and selling of child pornography motivates more production of such materials, an illegal activity. Thus, the New York law is lawful under the First Amendment.


Justice Brennan

The First Amendment value of depictions of children that are in themselves serious contributions to art, literature, or science is simply not de minimis. At the same time, the State’s interest in suppressing such materials is likely to be far less compelling. The Court’s assumption of harm to children resulting from the permanent record or circulation of the child’s participating lacks much of its force when the depiction is a serious contribution to art and science.


The prevention of sexual exploitation and abuse of children constitutes a government objective or significant importance. The city legitimately concluded that the use of children as subjects of pornographic materials is harmful to the emotional and mental health of children. Also, the pornographic materials produced remain a permanent record of the children’s participation and the harm to children is exacerbated by their circulation. Moreover, the value of permitting photographic reproductions of children engaged in sexual conduct is very small. They does not constitute an important or necessary part of our lives. The State is thus not barred by the First Amendment from prohibiting the distribution of unprotected materials produced outside the State.

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