New York v. Ferber, 458 U.S. 747 (1982)

Policymakers’ concern over child pornography was negligible to nonexistent during the 1960s and early 1970s. The 1970 report of the Commission on Obscenity and Pornography, organized by President Lyndon Johnson in 1968, gave little attention to the issue. By 1982, however, nearly all of the states and the federal government had targeted the production or distribution of child pornography. Congress, for example, passed the Protection of Children from Sexual Exploitation Act in 1977 prohibiting anyone from employing or inducing a minor to participate in sexual conduct or in the making of pornography. However, the material had to be obscene under the Miller v. California (1973) rule. As a direct result of the Supreme Court’s ruling in New York v. Ferber (1982), in 1984, Congress removed the need to prove obscenity when it passed the Child Protection Act.

At the time of the Ferber decision, at least half of the forty-seven state laws banning the production of sexually explicit material involving juveniles or minors did not require proof of obscenity; twenty of the thirty-five states prohibiting the distribution of this material lacked this requirement. New York’s law made it a criminal offense to distribute any material depicting sexual performances by minors under sixteen years of age, and listed examples of the proscribed sexual conduct. Like many other states, the law did not require that the depictions or portrayals be obscene. A jury convicted Ferber of two counts of violating this law after he sold police officers films showing young boys engaged in one of the proscribed behaviors. New York’s high court, the Court of Appeals, reversed Ferber’s conviction and struck down the law as underinclusive and overbroad, based on its interpretation of Miller v. California.

A unanimous Supreme Court reversed New York’s high court, but the majority opinion attracted only five votes as Brennan, Marshall, Blackmun, and Stevens concurred only in the judgment. The concurring opinions expressed concerns that New York’s law might be overbroad and that it and others like it, as interpreted by the majority opinion, could be applied to works of serious value involving children.

This was the first time that the Supreme Court confronted the issue of child pornography. In conference, Burger noted that traditional obscenity statutes, prohibiting the manufacture, distribution, or in some instances possession of obscene material by adults, did not apply to the persons performing sexual acts. He voted to reverse but the conference split four to four with White passing. White later decided to reverse and was assigned the opinion by Burger.

The Court held that visual depictions of live sexual performances by minors are unprotected by the First Amendment. According to White, states are entitled to ‘‘greater leeway’’ when regulating pornography involving the participation of minors or juveniles, and provides several reasons for why states have compelling interests in these regulations. One is the well-being of minors and the prevention of their exploitation and abuse. The distribution of child pornography, which ‘‘is intrinsically related to the sexual abuse of children,’’ creates economic incentives that encourage this abuse; ‘‘severe’’ criminal penalties, he claims, are needed to ‘‘dry up the market.’’ The social value of live performances or photographic reproductions of children engaged in lewd sexual behavior, moreover, is ‘‘exceedingly modest, if not de minimus.’’ Finally, placing child pornography outside the ambit of the First Amendment’s protections because of the ‘‘content’’ of the performance is not inconsistent with earlier Court decisions. Content-based classifications are not rare and may be particularly appropriate when ‘‘the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake.’’

It follows, then, that sexually explicit material involving minors requires adjustments in the Miller test. First, the trier of fact need not find that the material appeals to the prurient interest of an average person; second, the material need not depict sexual conduct in a patently offensive way; and third, the material in question does not have to be considered as a whole. White’s opinion, therefore, ratifies the absence in New York’s law of the need to establish ‘‘obscenity’’ as defined by Miller. Moreover, nonobscene performances, actual or simulated, as well as depictions of nonobscene sexual conduct involving minors could be banned or prohibited. To limit the reach of this ruling, White stipulates that the kind of conduct states may seek to regulate must be ‘‘adequately defined’’ by the law and confined to performances or depictions of these sexual conducts by children under a specific age.

New laws regarding child pornography soon appeared on the books. In 1985, Congress, recognizing the emerging role of computers as a means of distributing and transmitting child pornography, passed the Computer Pornography and Child Exploitation Act. A further political push came in 1986, when President Ronald Reagan’s attorney general, Edwin Meese, released the report of his Commission on Pornography. The Commission gave the issue of child pornography considerably more attention than the 1970 Commission and urged vigorous law enforcement to clamp down on the market for this kind of sexually explicit material.

In 1988, Congress responded with the Child Protection and Obscenity Enforcement Act, which prohibited the use of children in the production of pornographic works. This act also barred the distribution of any obscene material through cable or subscription television regardless of whether minors were involved in it or not. Congress has remained active in this area. For instance, the Child Pornography Prevention Act of 1996 made it illegal to distribute or receive child pornography, including virtual child pornography, by any means, although in Ashcroft v. American Civil Liberties (2002), the Supreme Court struck down provisions of the law that banned virtual child pornography.

ROY B. FLEMMING

References and Further Reading

• Fraleigh, Douglas. ‘‘Reno v. ACLU.’’ In Free Speech on Trial, edited by Richard A. Parker, 298–312. Tuscaloosa: University of Alabama Press, 2003.
• Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press, 2003.
• Kende, Mark S. ‘‘The Supreme Court’s Approach to the First Amendment in Cyberspace: Free Speech as Technology’s Hand-Maiden.’’ Constitutional Commentary 14, no. 3 (1997): 465–80.

Cases and Statutes Cited

• Ashcroft v. American Civil Liberties, 535 U.S. 564 (2002)
• Miller v. California, 413 U.S. 15 (1973)
• New York v. Ferber, 438 U.S. 747 (1982)