New York v. Ferber

Though Court decisions on obscenity often seemed vague and contradictory, the Court 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. Ohio case, 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 rise of the Internet in the early 1990s. Prohibition of child pornography was one of 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 defining child 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 focused on proliferation of child pornography on the Internet and protecting children using 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, feared use of these categories could lead to greater restrictions for additional types of speech. For that reason, many legal scholars believed using collective categories, 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 government restriction 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 likely focus 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, not less. In fact, many claimed any legislation developed over such an emotional subject 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 Court rejected 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 social trends that drive creation of state laws restricting individual rights would not be subjected to court review. Clearly, the New York law prohibiting child pornography would have been ruled unconstitutionally valid without creation of a speech category. With quickly evolving new electronic media in the late 1990s, many claimed Court review of tough speech issues was needed more than ever.