New York v. Ferber, 458 U.S. 747 (1982), is the foundational decision in which the Supreme Court held that the First Amendment does not protect child pornography. The Court reasoned such material was not protected — even if not obscene — because of its link to the sexual abuse of children.

New York and nine other states prohibited the dissemination of child pornography, which they defined as the depiction of children engaged in sexual conduct. Bookstore owner Paul Ferber sold two movies of young boys masturbating to an undercover police officer and was charged with violating the statute. The Supreme Court upheld the statute and Ferber’s conviction.

Although the vote was 9-0 with respect to the material at issue in this particular case, the Court was split 7-2, with its two most liberal members writing separately about whether certain artistic or literary depictions of children were constitutionally protected. Writing for the Court, Justice Byron R. White refused to apply the test for obscenity set out in Miller v. California (1973), which labels material obscene if the average person in the community would find the work’s predominant theme prurient; if it depicts sexual conduct in a patently offensive way; and when taken as a whole it “lacks serious literary, artistic, political, or scientific value.” White reasoned that the sexual exploitation of children belonged in a different class; therefore, the Miller test did not apply.

White defined child pornography as material “that visually depicts sexual conduct by children below a specified age.”The analysis was that this material was so intertwined with the sexual abuse of children that it did not warrant First Amendment protection. He explained that “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.”White went further, explaining that it was not only the production of child pornography that could be prohibited, but also its distribution.

Justice Sandra Day O’Connor wrote a concurrence, stressing that the state of New York did not have to provide an exception for material with serious literary, artistic, political, or scientific value. She added, however, that the statute could be overbroad if applied to “clinical pictures of adolescent sexuality” or to pictures in National Geographic magazine.

Justice John Paul Stevens also wrote a concurrence, pointing out that “it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection.”

Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, wrote a separate concurrence explaining that “depictions of children that, in themselves, do have serious literary, artistic, scientific, or medical value” would be protected by the First Amendment. Brennan said that these “serious contributions to the world of art or literature or science” did not contribute to the sexual abuse of children in the way that depictions from the “low profile, clandestine industry” of pornography did.

White and six other justices disagreed, noting, “We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific work.” White noted that, if necessary, adults who looked younger could be used in such situations.

The debate between White and Brennan over what was and what was not child pornography was revisited, although by no means resolved, in subsequent cases. For example, in Osborne v. Ohio (1990) the Court extended the logic of Ferber to private possession of child pornography and with the advent of the Internet narrowly held in Ashcroft v. Free Speech Coalition (2002) that part of a computer child pornography law was unconstitutional because it targeted expression that did not involve actual minors.

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