New York v. Ferber

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New York v. Ferber, 458 U.S. 747 (1982), is a landmark decision of the U.S Supreme Court , unanimously ruling that the First Amendment to the United States Constitution did not protect the sale or manufacture of child sexual abuse material (also known as child pornography) and that states could outlaw it.

Contents

• 1 Procedural background

• 2 Supreme Court's decision

• 3 See also

• 4 References

• 5 Further reading

• 6 External links

Procedural background

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New York had an obscenity law that made it illegal for an individual to "promote any performance which includes sexual conduct by a child less than sixteen years of age." Paul Ferber, an owner of an adult bookstore in Manhattan, was charged under the law after he sold an undercover police officer two films depicting young boys masturbating. He was charged with promoting both obscene sexual performances and indecent sexual performances. At trial, he was acquitted of the obscene sexual performance count but he was convicted of the indecent sexual performance count, and the conviction was affirmed by the intermediate appellate court. The New York Court of Appeals overturned the conviction, finding the obscenity law unconstitutional under the First Amendment because the law was both underinclusive as to other films of dangerous activity, and overbroad as to its application to materials produced out-of-state and non-obscene materials.

Supreme Court's decision

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The Court upheld the constitutionality of New York's obscenity law, ruling that it did not violate the First Amendment, and reversed and remanded the case.

For a long time before the decision, the Court had ruled that the First Amendment allowed the regulation of obscenity. Under the Court's previous decision in _Miller v. California _, 413 U.S. 15 (1973), material is "obscene" if, taken as a whole and applying contemporary community standards, it lacks serious scientific, literary, artistic, or political value, is "patently offensive" and aimed at "prurient interests".[1] The court in Ferber found that child pornography, however, may be banned without first being deemed obscene under Miller[2] for five reasons:

1. The government has a very compelling interest in preventing the sexual exploitation of children.[1] [2]

2. Distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children. The images serve as a permanent reminder of the abuse, and it is necessary for government to regulate the channels of distributing such images if it is to be able to eliminate the production of child pornography.

3. Advertising and selling child pornography provides an economic motive for producing child pornography.[1]

4. Visual depictions of children engaged in sexual activity have negligible artistic value.

5. Thus, holding that child pornography is outside the protection of the First Amendment is consistent with the Court's prior decisions limiting the banning of materials deemed "obscene" as the Court had previously defined it. For this reason, child pornography need not be legally obscene before being outlawed.

See also

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• Freedom of speech portal

• _Ashcroft v. Free Speech Coalition _, 535 U.S. 234 (2002), which ruled that certain provisions of the Child Pornography Prevention Act of 1996 were unconstitutional.

• PROTECT Act of 2003 , part of which superseded the Ashcroft decision to make the relevant statute conform with the Miller test .

• List of United States Supreme Court cases, volume 458

• Legal status of fictional child pornography

References

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1. 1 2 3 Aronson, Barton (April 19, 2002). "FindLaw Forum: Despite Supreme Court ruling, other strict legal constraints on child porn and obscenity remain" . _CNN . Retrieved June 12, 2009.[dead link
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2. 1 2 "Excerpts From Opinions in Ruling on the Child Pornography Prevention Act" . _The New York Times _. April 17, 2002. Retrieved June 12, 2009.

Further reading

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• Colen, J. S. (Spring 1982). "Child Pornography: Ban the Speech and Spare the Child—New York v. Ferber". _DePaul Law Review _. 32: 685. ISSN  0011-7188 .
• Woolsey, R. E. (1984). "Child Pornography and the Initial Impact of New York v. Ferber". _Journal of Juvenile Law _. 8: 237. ISSN  0160-2098 .

External links

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• Text of New York v. Ferber, 458 U.S. 747 (1982) is available from: CourtListener Findlaw Google Scholar Internet Archive (docket files) Justia Library of Congress Oyez (oral argument audio)

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