New York v. Ferber

The ruling created a new category of speech, child pornography, not protected by 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. Creating such 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 from First 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 16 years old in "sexual or simulated sexual performances" a felony. The material did 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 under the New York statute banning child pornography. The Appellate Section of the New York Supreme Court affirmed the conviction, but the New York Court of Appeals reversed it. The appeals court ruled that the material should have First Amendment 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 singled out for exclusion from First Amendment protection. The U.S. Supreme Court then accepted the case to decide this difficult constitutional issue.