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

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U.S. Supreme Court

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

New York v. Ferber

No. 81-55

Argued April 27, 1982

Decided July 2, 1982

458 U.S. 747


A New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. The statute defines "sexual performance" as any performance that includes sexual conduct by such a child, and "sexual conduct" is in turn defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent bookstore proprietor was convicted under the statute for selling films depicting young boys masturbating, and the Appellate Division of the New York Supreme Court affirmed. The New York Court of Appeals reversed, holding that the statute violated the First Amendment as being both underinclusive and overbroad. The court reasoned that, in light of the explicit inclusion of an obscenity standard in a companion statute banning the knowing dissemination of similarly defined material, the statute in question could not be construed to include an obscenity standard, and therefore would prohibit the promotion of materials traditionally entitled to protection under the First Amendment.

Held: As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment. Pp. 458 U. S. 753-774.

(a) The States are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons: (1) the legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child easily passes muster under the First Amendment; (2) the standard of Miller v. California, 413 U. S. 15, for determining what is legally obscene is not a satisfactory solution to the child pornography problem; (3) the advertising and selling of child pornography provide an economic motive for, and are thus an integral part of, the production of such materials, an activity illegal throughout the Nation; (4) the value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis; and (5) recognizing and classifying child pornography as a category of material outside the First Amendment's protection is not incompatible with this Court's decisions dealing with what speech is unprotected. When a definable class of material, such as that covered by the New

Page 458 U. S. 748

York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment's protection. Pp. 458 U. S. 756-764.

(b) The New York statute describes a category of material the production and distribution of which is not entitled to First Amendment protection. Accordingly, there is nothing unconstitutionally "underinclusive" about the statute, and the State is not barred by the First Amendment from prohibiting the distribution of such unprotected materials produced outside the State. Pp. 458 U. S. 764-766.

(c) Nor is the New York statute unconstitutionally overbroad as forbidding the distribution of material with serious literary, scientific, or educational value. The substantial overbreadth rule of Broadrick v. Oklahoma, 413 U. S. 601, applies. This is the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications.

"[W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which [the statute's] sanctions, assertedly, may not be applied."

Broadrick v. Oklahoma, supra, at 413 U. S. 615-616. Pp. 458 U. S. 766-774.

52 N.Y.2d 674, 422 N.E.2d 523, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 458 U. S. 774. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 458 U. S. 775. BLACKMUN, J., concurred in the result. STEVENS, J., filed an opinion concurring in the judgment, post, p. 458 U. S. 777.

Page 458 U. S. 749

Primary Holding

Child pornography does not need to meet the obscenity test for laws that prohibit its advertisement, sale, and distribution to be valid under the First Amendment.


The owner of an adult bookstore in New York City, Paul Ferber, sold a film showing the masturbation of children to a buyer who turned out to be an undercover police officer. As a result he was arrested and charged with violating a state obscenity law, which prohibited promoting performances by children (defined as under 16) that involved sexual conduct. Ferber was convicted of one of the two counts on which he was charged, which consisted of promoting indecent sexual performances. He was acquitted of promoting obscene sexual performances.

Procedural History

New York Court of Appeals - 52 N. Y. 2d, at 681, 422 N. E. 2

Conviction overturned. The law under which the defendant was convicted violates the First Amendment because it fails to include other films of improper conduct and also does not punish materials produced in the state and outside the state similarly.



  • Byron Raymond White (Author)
  • Warren Earl Burger
  • Lewis Franklin Powell, Jr.
  • William Hubbs Rehnquist
  • Sandra Day O'Connor

Disagreeing with the state appellate court, the majority found that the law was constitutional. White stated that the obscenity test created in Miller v. California (1973) did not apply to child pornography because this type of content is a separate categorical exception to First Amendment protection, rather than a type of obscenity. He emphasized the importance of protecting children from sexual abuse and found that films depicting sexual activity involving them were closely related to this abuse. The government thus has a compelling interest in banning the distribution of such materials as a means of fighting the abuse. Their production adds motivation to child pornographers, and their work has no artistic value.


  • Sandra Day O'Connor (Author)


  • William Joseph Brennan, Jr. (Author)
  • Thurgood Marshall


  • John Paul Stevens (Author)


  • Harry Andrew Blackmun (Author)

Case Commentary

The Court balanced an adult's right to enjoy sexually explicit material against the strong state interest in protecting children, finding that the latter was more significant. Child pornography remains one of the categorical exceptions to First Amendment rights.

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