New York v. Ferber

LOCATION: Bookstore

DOCKET NO.: 81-55
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: New York Court of Appeals

CITATION: 458 US 747 (1982)
ARGUED: Apr 27, 1982
DECIDED: Jul 02, 1982

Herald Price Fahringer - Argued the cause for the respondent
Robert M. Pitler - Argued the cause for the petitioner

Facts of the case

A New York child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by distributing material which depicts such performances.


Did the law violate the First and Fourteenth Amendments?

Media for New York v. Ferber

Audio Transcription for Oral Argument - April 27, 1982 in New York v. Ferber

Warren E. Burger:

We will hear arguments next in New York against Paul Ira Ferber.

Mr. Pitler, you may proceed whenever you are ready.

Robert M. Pitler:

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether New York can make it a crime to disseminate materials, for example, a movie, which show a 12-year old child actually having sex with an animal or an adult without requiring that the entire movie be obscene.

The purpose of this kind of legislation is, of course, to protect children from sexual abuse.

This purpose distinguishes this case and New York Penal Law Section 263.15 from the obscenity cases and statutes which have previously come before this Court.

In the previous cases, in the obscenity cases, the interests of the state are generally to protect the viewer, not to protect the people who participated in the film.

That much is made clear by the opinion for the Court by Chief Justice in the Paris Adult Theater case.

In that case three state interests were mentioned in support of general obscenity legislation, and all of those interests, without going into them, are aimed at protecting the viewer or the community from seeing the film.

Indeed, the obscenity standard itself is designed, in talking of terms of community standards, appeal to the prurient interests, the standard itself is designed to protect the viewer.

Here, the statute in question is not at all designed to protect the viewer.

You know, one can say, pardon the expression, in terms of obscenity legislation to some extent you deal with a victimless crime.

This statute and the concern here, we are not dealing with a victimless crime.

We are dealing with a crime against a child who is made to perform any and every kind of sexual conduct by an adult.

And that child is made to do so generally, I would think, involuntarily.

He is cast in a role which will have a profound adverse effect upon him, and that adverse effect is both physical and mental.

And I am not going to repeat what we have set forth in Appendix B to our brief about all the damage that is done to children.

And the harm to children is not limited to the production process itself.

The child's privacy when he is made to appear in that film is forever invaded.

He knows in his mind that he is on that film and that film is being disseminated all throughout the United States.

The embarrassment caused to him, the emotional and psychic trauma to him is quite grave.

Now, our adversaries recognize that the state interest here is compelling at least with respect to the production part of the statute, in prohibiting people from using children in production of the materials.

There is no challenge to that part of the statute.

But once the production is completed and the sexual abuse, as we call it and I think properly so, is memorialized on film, our adversaries say the First Amendment then comes into play and you may not prohibit the dissemination of that material even though it was committed by committing a crime against a child.

They say this is especially so, because there are less restrictive ways to deal with the problem than an outright ban on dissemination.

They point to two.

One less restrictive way they think of dealing with the problem involved here is the production statute itself.

It is good enough just to ban the use of children.

We submit to the Court that that is not an effective alternative to the dissemination statute.

And the reason it is not an effective alternative, the dissemination statute, is because most of the production is done secretly.