Petitioner
State of New York
Respondent
Paul Ira Ferber
Petitioner's Claim
That a state law restricting the sales and distribution of films and photographs containing children in sexually explicit scenes does not violate the First Amendment's protection of free speech.
Chief Lawyer for Petitioner
Robert M. Pitler
Chief Lawyer for Respondent
Harold Price Fahringer
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens, Byron R. White (writing for the Court)
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
2 July 1982
Decision
Upheld the state of New York's claim and overturned a lower court's decisionprohibiting the restriction of nonobscene materials by a state law.
Significance
The ruling created a new category of speech, child pornography, not protectedby the First Amendment's Free Speech Clause. The state successfully argued its interest that protecting the physical and psychological well-being of children far outweighed any social value of materials containing sexually explicit scenes involving juveniles. The addition of a new category of speech excluded from constitutional protection stirred considerable controversy. Creatingsuch speech categories, though sending strong social messages, actually limits the courts' constitutional role in reviewing actions of the other two branches of government. Despite these concerns, additional categories, including pornography in general and hate speech, were later proposed for exclusion fromFirst Amendment protection.
There has been broad recognition that free speech requires additional restrictions where children are involved. During the 1970s exploitative use of children in pornography rose sharply. In response, by 1982 almost all states and Congress passed laws banning child pornography. One of the first states to act, New York established a law in 1977 making the use of children less than 16years old in "sexual or simulated sexual performances" a felony. The materialdid not have to be legally obscene to be prohibited. Materials are legally obscene when, taken as a whole, they can be considered offensive and lacking serious value of any type.
Soon after the law passed, undercover police officers arrested Paul Ferber, an adult bookstore owner in New York City, after selling them two films containing sexually explicit scenes of underage boys. Though a jury in a New York lower court did not find the films legally obscene, it convicted Ferber underthe New York statute banning child pornography. The Appellate Section of theNew York Supreme Court affirmed the conviction, but the New York Court of Appeals reversed it. The appeals court ruled that the material should have FirstAmendment protection since a jury did not find it obscene. The court found that "nonobscene adolescent sex" was too narrow a form of speech to be singledout for exclusion from First Amendment protection. The U.S. Supreme Court then accepted the case to decide this difficult constitutional issue.
Speech Unworthy of Protecting
In a series of decisions the Supreme Court identified "fighting words," grouplibel, and obscenity as types of speech that lack any social benefit and deserve automatic exclusion from constitutional protection. In the 1942 Chaplinsky v. New Hampshire case, the Court ruled that fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Later cases added the importance of the circumstancein which the words are spoken. In the 1952 Beauharnais v. Illinois case, the Court held that speech attacking a class of people, such as a racial minority, constituted group libel and was not protected by the First Amendment.
A definitive Supreme Court ruling regarding obscenity did not occur until 1957 in Roth v. United States. In defining obscene, the Court held that obscenity was a category of speech "utterly without redeeming social importance." Obscenity could not be sex alone, but sex portrayed in the most indecentmanner. The Court, in establishing a new category of speech unprotected by the First Amendment, proclaimed obscenity as unworthy of any level of acceptability. In Miller v. California (1973), the Court revised Roth byestablishing a test to determine if certain material was obscene and to balance states' interests in restricting pornography with speech censorship. Thetest involved determining if the speech was: (1) improper based on state or local "contemporary community standards" rather than on national standards under Roth; (2) obviously sexually offensive as banned by the law; and, (3) of no serious political, scientific, literary, or artistic value.
The Court considered state laws restricting speech based on content, such asfighting words, group libel, and obscenity, appropriate only when the restrictions were very specifically defined and applied. The Court considered speechnot included in these categories protected unless presenting a "clear and present danger" of substantial harm to someone.
A New Speech Category
In Ferber, the Court ruled for the first time on a law restricting depictions of sexual activity involving children. Justice White, writing for theunanimous Court, found the Miller test irrelevant when considering child pornography. White stated "it is evident . . . that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling." In stating why child pornography should comprise a new form of unprotected expression under the Constitution, the Court found that child pornography was always child abuse and did not warrant any level of protection. White wrote "the use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child." White added, "It is irrelevant to the child whether or not the material has literary, artistic, political or scientific value." However, he wrote that child nudity "without more" did "constitute protected expression." White concluded that New York had considerable flexibility to regulate child pornography and the law was valid.
Though concurring, Justice O'Connor was concerned that future state laws inappropriately restricting speech would be shielded from court review by creation of the new speech category. Medical photographs and photographs of ceremonial rites in other cultures could be improperly restricted. To this concern Justice Stevens responded in his concurrence that the "First Amendment affordssome forms of speech more protection from governmental regulation than otherforms of speech," and that child pornography ranks "near the bottom of this hierarchy." For speech so marginal, Stevens wrote, concern about the overly broad aspects of laws restricting such offensive speech need not be addressed by the Court.
Impact
Though Court decisions on obscenity often seemed vague and contradictory, theCourt made a clear statement on child pornography. Free from fears of violating the First Amendment by placing tough restrictions on child pornography, Congress passed the Child Protection Act of 1984 shortly after the decision. Where Ferber focused primarily on distribution of child pornography, the issue of personal possession soon arose. In the 1990 Osborne v. Ohiocase, the Court found an Ohio law banning the possession of child pornography for other than very specific medical, educational, governmental, religious,or other identified purposes was constitutionally valid. The Court "cannot fault Ohio for attempting to stamp out this vice at all levels of the distribution chain." Similarly, the Court in 1994, held in United States v. X-Citement Video that distributors are responsible for knowing if minors are used in materials they sell.
Questions of obscenity and regulation of pornography escalated with the riseof the Internet in the early 1990s. Prohibition of child pornography was oneof the first issues tackled by the Clinton administration in 1993. By the mid-1990s Congress attempted to ban child pornography on the Internet through the Communications Decency Act of 1996, but the courts found language definingchild pornography as "an image that appears to be a minor engaging in sex" too vague. As a consequence, a special Senate hearing in April of 1997 focusedon proliferation of child pornography on the Internet and protecting childrenusing computers from online sexual predators. With the global reach of the Internet, the relevance of Miller's "community standards" appeared to breakdown. To update the standard, sociologists attempted to determine the "international community's" opinion on electronic erotica.
The key legal issues raised by Ferber was the creation of another speech category not protected by the First Amendment. Many, like O'Connor, feareduse of these categories could lead to greater restrictions for additional types of speech. For that reason, many legal scholars believed using collectivecategories, rather than judging each case on its own merit, reversed the basic principles of constitutional law. Unprotected speech categories resulted in making it the speaker's responsibility to justify the social value of his speech. To contrast, protected speech places the burden of proof with the state government when restricting speech. The use of categories resulted in government restrictions which were free from rigorous judicial examination. The Court was accused of dodging the constitutional and socially important duties it was created to perform, such as deciding the appropriateness of governmentrestriction on individual rights. Because of the variability of speech in unlimited possible settings, many believed the Court should seek to resolve speech issues and establish principles by carefully reviewing each case separately on its own merits. In effect, First Amendment exclusions eliminated from judicial review the marginal forms of speech that the courts should most likelyfocus on. The Court would only be judging forms of speech it felt more comfortable hearing. Free speech advocates claimed the unpopularity of a particular speech should command more review and possible protection by the Court, notless. In fact, many claimed any legislation developed over such an emotionalsubject as child pornography should receive the closest judicial review of all.
In contrast, those supporting use of speech categories claimed that case-by-case court review led to unpredictable results and confusion for states and the media. Other possible speech categories proposed since Ferber included hate speech and pornography in general. Both were based on the perceived connection of these marginal forms of speech to violence. Pornography was portrayed as a form of discrimination against women by shaping social attitudes and hindering equality of the sexes. The need for censorship was identified. However, in 1985 American Booksellers Association v. Hudnut, the Courtrejected the notion that pornography was a form of discrimination against women and declined to create another speech category excluded from First Amendment protection.
Many feared the number of categories of speech free from First Amendment protections would continue to grow. If so, then popular majority views and socialtrends that drive creation of state laws restricting individual rights wouldnot be subjected to court review. Clearly, the New York law prohibiting child pornography would have been ruled unconstitutionally valid without creationof a speech category. With quickly evolving new electronic media in the late1990s, many claimed Court review of tough speech issues was needed more thanever.
Related Cases
State of New York
Respondent
Paul Ira Ferber
Petitioner's Claim
That a state law restricting the sales and distribution of films and photographs containing children in sexually explicit scenes does not violate the First Amendment's protection of free speech.
Chief Lawyer for Petitioner
Robert M. Pitler
Chief Lawyer for Respondent
Harold Price Fahringer
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens, Byron R. White (writing for the Court)
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
2 July 1982
Decision
Upheld the state of New York's claim and overturned a lower court's decisionprohibiting the restriction of nonobscene materials by a state law.
Significance
The ruling created a new category of speech, child pornography, not protectedby the First Amendment's Free Speech Clause. The state successfully argued its interest that protecting the physical and psychological well-being of children far outweighed any social value of materials containing sexually explicit scenes involving juveniles. The addition of a new category of speech excluded from constitutional protection stirred considerable controversy. Creatingsuch speech categories, though sending strong social messages, actually limits the courts' constitutional role in reviewing actions of the other two branches of government. Despite these concerns, additional categories, including pornography in general and hate speech, were later proposed for exclusion fromFirst Amendment protection.
There has been broad recognition that free speech requires additional restrictions where children are involved. During the 1970s exploitative use of children in pornography rose sharply. In response, by 1982 almost all states and Congress passed laws banning child pornography. One of the first states to act, New York established a law in 1977 making the use of children less than 16years old in "sexual or simulated sexual performances" a felony. The materialdid not have to be legally obscene to be prohibited. Materials are legally obscene when, taken as a whole, they can be considered offensive and lacking serious value of any type.
Soon after the law passed, undercover police officers arrested Paul Ferber, an adult bookstore owner in New York City, after selling them two films containing sexually explicit scenes of underage boys. Though a jury in a New York lower court did not find the films legally obscene, it convicted Ferber underthe New York statute banning child pornography. The Appellate Section of theNew York Supreme Court affirmed the conviction, but the New York Court of Appeals reversed it. The appeals court ruled that the material should have FirstAmendment protection since a jury did not find it obscene. The court found that "nonobscene adolescent sex" was too narrow a form of speech to be singledout for exclusion from First Amendment protection. The U.S. Supreme Court then accepted the case to decide this difficult constitutional issue.
Speech Unworthy of Protecting
In a series of decisions the Supreme Court identified "fighting words," grouplibel, and obscenity as types of speech that lack any social benefit and deserve automatic exclusion from constitutional protection. In the 1942 Chaplinsky v. New Hampshire case, the Court ruled that fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Later cases added the importance of the circumstancein which the words are spoken. In the 1952 Beauharnais v. Illinois case, the Court held that speech attacking a class of people, such as a racial minority, constituted group libel and was not protected by the First Amendment.
A definitive Supreme Court ruling regarding obscenity did not occur until 1957 in Roth v. United States. In defining obscene, the Court held that obscenity was a category of speech "utterly without redeeming social importance." Obscenity could not be sex alone, but sex portrayed in the most indecentmanner. The Court, in establishing a new category of speech unprotected by the First Amendment, proclaimed obscenity as unworthy of any level of acceptability. In Miller v. California (1973), the Court revised Roth byestablishing a test to determine if certain material was obscene and to balance states' interests in restricting pornography with speech censorship. Thetest involved determining if the speech was: (1) improper based on state or local "contemporary community standards" rather than on national standards under Roth; (2) obviously sexually offensive as banned by the law; and, (3) of no serious political, scientific, literary, or artistic value.
The Court considered state laws restricting speech based on content, such asfighting words, group libel, and obscenity, appropriate only when the restrictions were very specifically defined and applied. The Court considered speechnot included in these categories protected unless presenting a "clear and present danger" of substantial harm to someone.
A New Speech Category
In Ferber, the Court ruled for the first time on a law restricting depictions of sexual activity involving children. Justice White, writing for theunanimous Court, found the Miller test irrelevant when considering child pornography. White stated "it is evident . . . that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling." In stating why child pornography should comprise a new form of unprotected expression under the Constitution, the Court found that child pornography was always child abuse and did not warrant any level of protection. White wrote "the use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child." White added, "It is irrelevant to the child whether or not the material has literary, artistic, political or scientific value." However, he wrote that child nudity "without more" did "constitute protected expression." White concluded that New York had considerable flexibility to regulate child pornography and the law was valid.
Though concurring, Justice O'Connor was concerned that future state laws inappropriately restricting speech would be shielded from court review by creation of the new speech category. Medical photographs and photographs of ceremonial rites in other cultures could be improperly restricted. To this concern Justice Stevens responded in his concurrence that the "First Amendment affordssome forms of speech more protection from governmental regulation than otherforms of speech," and that child pornography ranks "near the bottom of this hierarchy." For speech so marginal, Stevens wrote, concern about the overly broad aspects of laws restricting such offensive speech need not be addressed by the Court.
Impact
Though Court decisions on obscenity often seemed vague and contradictory, theCourt made a clear statement on child pornography. Free from fears of violating the First Amendment by placing tough restrictions on child pornography, Congress passed the Child Protection Act of 1984 shortly after the decision. Where Ferber focused primarily on distribution of child pornography, the issue of personal possession soon arose. In the 1990 Osborne v. Ohiocase, the Court found an Ohio law banning the possession of child pornography for other than very specific medical, educational, governmental, religious,or other identified purposes was constitutionally valid. The Court "cannot fault Ohio for attempting to stamp out this vice at all levels of the distribution chain." Similarly, the Court in 1994, held in United States v. X-Citement Video that distributors are responsible for knowing if minors are used in materials they sell.
Questions of obscenity and regulation of pornography escalated with the riseof the Internet in the early 1990s. Prohibition of child pornography was oneof the first issues tackled by the Clinton administration in 1993. By the mid-1990s Congress attempted to ban child pornography on the Internet through the Communications Decency Act of 1996, but the courts found language definingchild pornography as "an image that appears to be a minor engaging in sex" too vague. As a consequence, a special Senate hearing in April of 1997 focusedon proliferation of child pornography on the Internet and protecting childrenusing computers from online sexual predators. With the global reach of the Internet, the relevance of Miller's "community standards" appeared to breakdown. To update the standard, sociologists attempted to determine the "international community's" opinion on electronic erotica.
The key legal issues raised by Ferber was the creation of another speech category not protected by the First Amendment. Many, like O'Connor, feareduse of these categories could lead to greater restrictions for additional types of speech. For that reason, many legal scholars believed using collectivecategories, rather than judging each case on its own merit, reversed the basic principles of constitutional law. Unprotected speech categories resulted in making it the speaker's responsibility to justify the social value of his speech. To contrast, protected speech places the burden of proof with the state government when restricting speech. The use of categories resulted in government restrictions which were free from rigorous judicial examination. The Court was accused of dodging the constitutional and socially important duties it was created to perform, such as deciding the appropriateness of governmentrestriction on individual rights. Because of the variability of speech in unlimited possible settings, many believed the Court should seek to resolve speech issues and establish principles by carefully reviewing each case separately on its own merits. In effect, First Amendment exclusions eliminated from judicial review the marginal forms of speech that the courts should most likelyfocus on. The Court would only be judging forms of speech it felt more comfortable hearing. Free speech advocates claimed the unpopularity of a particular speech should command more review and possible protection by the Court, notless. In fact, many claimed any legislation developed over such an emotionalsubject as child pornography should receive the closest judicial review of all.
In contrast, those supporting use of speech categories claimed that case-by-case court review led to unpredictable results and confusion for states and the media. Other possible speech categories proposed since Ferber included hate speech and pornography in general. Both were based on the perceived connection of these marginal forms of speech to violence. Pornography was portrayed as a form of discrimination against women by shaping social attitudes and hindering equality of the sexes. The need for censorship was identified. However, in 1985 American Booksellers Association v. Hudnut, the Courtrejected the notion that pornography was a form of discrimination against women and declined to create another speech category excluded from First Amendment protection.
Many feared the number of categories of speech free from First Amendment protections would continue to grow. If so, then popular majority views and socialtrends that drive creation of state laws restricting individual rights wouldnot be subjected to court review. Clearly, the New York law prohibiting child pornography would have been ruled unconstitutionally valid without creationof a speech category. With quickly evolving new electronic media in the late1990s, many claimed Court review of tough speech issues was needed more thanever.
Related Cases
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
- Beauharnais v. Illinois, 343 U.S. 250 (1952).
- Roth v. United States, 354 U.S. 476 (1957).
- Miller v. California, 413 U.S. 15 (1973).
- Hudnut v. American Booksellers Association, 475 U.S. 1001 (1985).
- Osborne v. Ohio, 495 U.S. 103 (1990).
- United States v. X-Citement Video, Inc., 513 U.S. 64 (1994).
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