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

  • Ferber owned an adult bookstore. He sold books with naked children in them. He was arrested and charged with violating New York’s child pornography law.
  • Ferber was convicted. He appealed.
    • Ferber argued that the 1st Amendment guaranteed the right to free speech, and that included kiddie-porn. Therefore the New York law was unconstitutional.
      • Ferber argued that there was artistic value to the books he sold.
  • The Appellate Court upheld the conviction. Ferber appealed.
  • The New York Supreme Court reversed. The prosecutor appealed.
  • The US Supreme Court reversed, and found that New York’s child pornography law was constitutional.
    • The US Supreme Court found that material that is obscene is not covered by 1st Amendment protections of free speech.
    • The Court found that the State has a strong interest in protecting children from sexual abuse, and that compelling government interest was enough to make the child pornography law a constitutional exception to the 1st Amendment.
    • Ferber unsuccessfully argued that under the standard given in Miller v. California (413 U.S. 15 (1973)), his books were not obscene because they had some artistic value. However, the Court found that material could be censored even if it didn’t meet the definition of obscene.
      • Miller found that material is only obscene if, taken as a whole and applying contemporary community standards, it lacks serious scientific, literary, artistic, or political value.
  • As in many other constitutional issues, this case could be thought of as being a strict scrutiny test. The Court found that the State’s interests were strong enough (aka a compelling government interest), and the law was narrowly tailored enough, that it was constitutional even though it infringed on a constitutional right.
    • Obscenity is not covered by the 1st Amendment at all because it is not considered to be ‘speech’. In this case, the Court found that even things that could be considered ‘speech’ (because they arguably had artistic merit) could still be censored, as long as the censoring served a compelling government interest.