New York v. Ferber - 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 the unanimous 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 affords some forms of speech more protection from governmental regulation than other forms 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.