New York v. Ferber


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?

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.

Robert M. Pitler:

They cannot be found out.

The producers are very, very difficult to infiltrate, very difficult to find.

Your submission is that the dissemination prohibition is essential to supplement the production prohibition, which you say you can validly do.

Robert M. Pitler:


In effect, it is part of a statutory scheme which is designed to protect children, and you cannot protect children just by the production statute.

Well, how can you… then how do you… I am sure you will get to this sooner or later and you may do it in your own course if you want to, but how do you explain then your prohibition of distribution on production that has taken place outside the state?

That certainly is not as a supplement to any kind of production that you are legally authorized to prohibit.

Robert M. Pitler:

Well, one of the problems is that you cannot determine where the production takes place in a lot of these films.

It’s impossible.

They don’t say… they don’t have a list of credit–

But suppose it’s quite possible.

Suppose in a particular case everybody concedes the production took place in California.

Then what’s your–

Robert M. Pitler:

–We would say that those films, in effect, would feed a market that would make it likely that children in New York would be used to make other films.

Basically, it’s a kind of market analysis.

It doesn’t make a difference where the film is made.

It feeds a market.

People want to buy the films, there’s a desire for more films, and then children, regardless of where they live, in effect, will be made to appear in these films.

And therefore, it would serve that purpose as well.

–More pressure, more invitation to secret production in New York.

More likely that–

Robert M. Pitler:

Or taking the New York children elsewhere to make films, as well.

Now, it’s our position that the only way that you can get at the use of children is to ban the dissemination.

It’s really the least restrictive alternative.

So in effect, the distributors provide the economic incentive for making these films.

And this is something that’s recognized in testimony before the Congress and from rather diverse sources.

From Charles Rembar to the L.A. Police Department, from Professor Tribe of Harvard to a senior editor of Playboy Magazine, everyone recognizes the best way, the most effective way and the most realistic way to get at the abuse of children in the production is to ban the dissemination.

The second alternative to the dissemination ban of New York is the obscenity standard.

In effect, limit the ban on dissemination to materials that are obscene.

We believe that most theoretically and realistically, that does not work.

Robert M. Pitler:

First of all, as a matter of theory, as I said in my opening remarks, the obscenity statute is designed, and the standards that this Court has enunciated, is designed to protect the viewer, not the child who is made to perform.

Moreover, even a work is not obscene in the legal definition, a child has been abused in the production of that work.

You cannot get away from that fact.

And moreover, the obscenity standard, we would submit, is not a sufficient deterrent to deal with this particular kind of issue.

You have to prove… the obscenity standard requires you look at community standards, to the prurient interests, to whether there’s a particular group involved.

And I think no case better illustrates why this is an ineffective deterrent than the instant case.

The defendant here was charged with both disseminating an obscene movie and just disseminating a movie containing sexual conduct of a child.

He was acquitted with respect to the obscenity on charges.

And if you read the record, I thought that this would be a relatively simple case.

You show the film to the jury… I don’t know if the Court has seen the film yet but it is in the courthouse and it would be relatively simple.

The entire trial was devoted in this case, despite the fact that these films were entirely devoted to sexual conduct, to… does this appeal to the prurient interest of a particular group?

Now, I would think when a child is abused in the making of a film, society shouldn’t be interested in whether or not the film appeals to the prurient interest of a particular group.

We shouldn’t be interested in whether there are other films out there similar to this film that are sold regularly.

And we shouldn’t be concerned about any particular group.

The jury was out approximately 12 hours in this case, all focusing on… all their questions show they were focusing on the obscenity question.

–Twelve hours on both counts?

Robert M. Pitler:


All focusing on the obscenity question.

Does the record show here where the film was made?

Robert M. Pitler:

No, Your Honor.

In most of these films, it is virtually impossible see where they are made.

And there was no proof in this case about that, I gather.

Robert M. Pitler:

At one time there was an offer of proof that they wanted to prove that the film was made in Europe, and the judge rejected that saying that was not relevant to the statutory scheme, for the reasons that I gave Justice White, in order to deter the abuse in New York.

I take it you were surprised at the verdict.

Robert M. Pitler:

I didn’t try the case, but upon reading the trial transcript, I was not surprised at the verdict.

You were not surprised at the acquittal on the one count and–

Robert M. Pitler:

No, because so much confusion was caused between the experts on the group involved, that I’m not sure the jury could follow any intelligent instructions with respect to that.

–Well, can’t that also be explained under the ancient proposition of inconsistent verdicts, which the system has found tolerable?

We have never expected consistent verdicts, necessarily, from the–

Robert M. Pitler:

Well actually, I think the verdicts in this case are consistent.

–One explanation could be for some people, but inconsistent verdicts are part of the system.

Robert M. Pitler:

That is certainly true, Your Honor.

May I just clarify one thing?

Is it correct that there were two films and as to each film there was a charge both on the obscene section of the statute, and also on the non-obscene statute.

Robert M. Pitler:

That is correct.

So it’s kind of like a lesser included defense.

Robert M. Pitler:


What if they found him guilty on all four counts?

Could that verdict have stood?

Robert M. Pitler:


I think–

That the film had been both obscene and not obscene?

Robert M. Pitler:

–No, they wouldn’t have to… in other words, obscenity would be irrelevant.

They could say that the theme of the film is obscene… I have to withdraw that.

I’m not sure exactly what instructions were given to the jury in this case.

They could have been instructed that once you find the conviction on the obscenity, you don’t reach the second.

But I don’t think… I’m not–

What is your view of the statute?

Supposing the films had been obscene.

Your view is that they could be convicted under all four counts?

It seems to me there’s kind of a double punishment problem there,–

Robert M. Pitler:


In New York you would only have a double punishment problem if they were served… if consecutive sentences were to be imposed.

You would have what I think we call a multiplicity.

But the only remedy with respect to multiplicity is you do not allow the sentences to be increased.

–There’s nothing about the portion of the statute that is before us that requires non-obscenity as an element, is there?

Robert M. Pitler:

That is correct.

And that question was suggested: the non-obscenity would not be a lesser included offense of the obscenity count.

I think they would stand together.

So you could violate this particular statute even if the movies were obscene.

Robert M. Pitler:

Yes, but the prosecution–

If you used children in producing an obscene movie, do you violate this statute?

Robert M. Pitler:

–The answer is yes, but the people would not have to prove the film–

I understand.

But you could.

Robert M. Pitler:

–Yes, you could violate the statute.

But it’s the problem of the proof of obscenity is why the legislature did away–

I understand, I understand.

Robert M. Pitler:

–Now, it may well be that when we’re dealing with protecting the viewer in the obscenity context, that we’re prepared to pay the price of standards that may not effectively deter abuse xx that circumstances, as I said before, we’re sort of dealing with a victimless crime.

But I don’t think when we’re dealing with protection of children, that the New York legislature decide and I would hope this Court would hold, that have to run hope of acquittals in having an ineffective deterrent to the abuse of children.

That brings us to the statute on its face.

Now, one of the problems before this Court of Appeals held that obscenity was like a threshold question.

If the statute didn’t require proof of obscenity, the statute was unconstitutional and therefore, there’d be no limiting construction possible.

They didn’t deal with proposed limiting constructions or even go to it, because they said obscenity was the bottom line.

What I’d like to do is to go through the statute and at least show why, on its face, the statute is not over-broad, and in the course of that, to at least offer some potential limiting constructions that the New York Court of Appeals might and probably would consider.

First,… and it is 263.15 of New York’s Penal law and it is found, I believe, on page 3a of the Appendix to our brief.

Now, we have shorthanded the statute a little bit, but basically, it prohibits dissemination of material depicting the sexual conduct of children.

And the sexual conduct we think is defined in pretty precise terms.

It’s bestiality, sexual intercourse, sodomy, lewd display of the genitals, explicit simulated… any of the conduct simulated.

And if these terms sound familiar, they certainly are because they are right from the Miller versus California standard talking about the hardcore kind of sexual conduct that could be prohibited in the obscenity context.

Now, amici and our adversary have suggested that the term “lewd display of the genitals” is vague and that would deal with just simple nudity.

I think that a reading of this Court’s opinion in the Miller case and the Paris Art Theater case and the New York Court of Appeals case in People versus Heller shows that that concern is totally unwarranted.

Now, it’s true the New York court has not yet had a chance to interpret the statute, but lewd exhibition or lewd display of the genitals, at least as far as this Court is concerned and the New York court is concerned, feels it a patently offensive depiction, designed to appeal to an interest in sex.

Now, the amici point to medical texts saying these medical texts would be covered by this statute.

But I don’t think there is any way, I don’t think any reasonable person, I don’t think any prosecutor, I don’t think any jury, I don’t think any judge and I don’t think any bookseller can really look at a medical text and think for a second that that is a lewd display of the genitals within the meaning of the statute.

Mr. Pitler, can I interrupt you there?

At page 3a of the jurisdictional statement… or I guess it is the cert petition rather… there’s a paragraph in which the court of appeals describes what it says the statute covers.

And one of the things it says it covers is just what you have described.

It says,

“It would also prohibit the sale, showing or distributing of medical or educational materials containing photographs of such– “

Robert M. Pitler:

Judge, I think that they were dealing with the statute on its face, saying, in effect,–

–Haven’t they construed their own statute?

Robert M. Pitler:

–Judge, I don’t think that you can read the court of appeals’ decision as construing their own statute because I think even though they said that, I don’t think they were focusing on lewd display of the genitals at the time.

They would have to find it inconsistent with their own decision in People versus Heller.

And I think a fair reading of the opinion, which I must say, in all deference to the court of appeals, not one of the great exhibits of judicial craftsmanship.

Because they were saying look, the statute… we will allow you… I was going to say hopefully, this case will go back to the court and I am perfectly prepared to tell that to them during the argument as well.

But I think that they were concerned about the obscenity part of the statute, the absence.

And they said look, obscenity is not covered by this statute, and that everything else just follows.

I don’t think they were really focusing on it.

And indeed, I don’t recall even our brief or in our adversary’s brief really focusing on the term “lewd display of the genitals” at the time before the court of appeals.

Well maybe they were careless and didn’t look at the word “lewd” as carefully as they should have.

But it seems to me that paragraph tells us what they think the statute prohibits.

And maybe that’s crazy for them to read it that way, but can we reread a New York statute differently?

Robert M. Pitler:

No, clearly not.

But I would urge Your Honor to read the opinion in its whole and entirety.

–mention that, but I think a fair reading is that the court did not focus on that issue, and their–

Well, they clearly did not focus on the meaning of the word “lewd”, I agree with you completely.

Robert M. Pitler:

–And if we are right, if they say you must prohibit obscenity and only obscenity, and this Court says no, the state can go further, this case could go back to the New York Court of Appeals for them to decide precisely how they think “lewd” should be defined.

And I can assure Your Honor that we are going to urge the court that lewd has to be defined exactly as we have suggested to this Court, and that’s the way it should be defined.

And I think if the case goes back and the court decides to give a limiting construction, that is precisely what the court will hold.

They have not so held yet.

Even though, again, the language read literally might cover that, I think you have to read a little bit more into it, though.

Do you know if the argument was made to them at the time of that appeal, what the word “lewd” meant or how–

Robert M. Pitler:

My recollection is that it was not focused on.

I don’t think the argument was made.

–Do you think the point is fatal to your case, Mr. Pitler?

Robert M. Pitler:


Do you think the point is fatal to your case, is critical to your case?

Suppose the court meant exactly what it said.

What would your response be?

Would you say that you cannot forbid… would you agree, or would you say that the state can forbid the use of children in non-lewd photographs displaying the genitals?

Robert M. Pitler:

Unless there were some other exception for medical treatise is required by the Constitution, I would say the state could not do that.

Could not do that.

Robert M. Pitler:

Could not.

Unless there were an exception somewhere else dealing with legitimate scientific works.

And our adversary cited a number of books, very fine and legitimate treatises where there are pictures–

But then you would say but the only reason the statute would be invalid then is because it was over-broad.

Robert M. Pitler:

–Yes, the statute would be over-broad.

Don’t you think it would substantially over-broad, if that’s all it… if that was the only degree of its over-breadth; that it just happened to ban medical treatises?

Robert M. Pitler:

We certainly then could use the broad analysis there and say that the statute might be unconstitutional as applied in a particular group of cases, but the statute still would survive, thank you very much.

These people certainly weren’t publishing medical treatises, were they?

Robert M. Pitler:

Oh, no, sir, they certainly were not.

So the term “lewd” I think really has not been defined by the court of appeals.

I think this Court has looked at the term similarly, and it is clearly the legislative intent.

The fact, that they use the word “lewd” and they didn’t use simple nudity to describe the kind of conduct, so there really isn’t a problem with respect to the term “lewd”.

Next, the question is: is there really a real fear of over-breadth with respect to the statute.

And we think really not.

Our adversary… amici points to a whole number of books that say look, they are covered by the statute.

By and large, those are books that may have some display of genitalia but not in a lewd way at all, and I don’t think anyone could disagree with that.

There is some simple nudity but this statute is very carefully drawn, it does not cover simple nudity.

What it does cover is nudity when accompanied by an explicit, simulated sexual act.

And to the best of my knowledge, almost all these books do not.

And if there is one somewhere, or two somewhere, it seems to me that that’s a pretty small price to be paid for the statute in the way it protects children.

So you would not regard the frieze in this building, that one, with its display of nudity, both sides, as not being offense to the statute?

Robert M. Pitler:

Judge, my quick look around shows me that there’s nothing lewd in any of that.

And anyway, I would doubt–

Well, there are children on both ends of that one up there.

Robert M. Pitler:

–Still looking, I don’t see anything… and I don’t think there’s a prosecutor in this country or a jury in this country… You know what you have to do is you have to take a picture and then disseminate it in New York.

I don’t think there’s a real fear of that at all.

Now, even assuming that the First Amendment somehow requires some kind of limited exception for educational, medical and scientific material, it certainly can be read into the statute if the New York Court of Appeals would choose to do so.

Robert M. Pitler:

Amici has suggested what we think is a fine standard, and that is educational, medical and scientific materials which as an essential part of their presentation contain depiction of sexual conduct by children.

The fact that the statute doesn’t have it doesn’t make the statute fatally over-broad.

It’s something that, once, could be dealt with on a case-by-case basis, or even the court of appeals if it chose to do so, could read it in.

The other kind of over-breadth that is pointed to, and I think it can’t be serious, is what I call the dissemination kind of over-breadth.

Previously I was talking about content over-breadth.

What I mean by dissemination over-breadth, I sent these films to the court, pursuant to a request from the court.

Literally under the statute, I have disseminated the films.

Now, even though I was a prosecutor, I didn’t feel prosecution,… I don’t think anyone… I wasn’t discouraged at all, I wasn’t worried about it at all, and I think the so-called dissemination over-breadth is just not a real threat, at least with respect to the situations that they posit.

For example, giving the copies of the films to the news media to show so that the news media will write stories about the films, and give them to the television media.

I don’t think there’s a real fear and certainly could be limited.

By the way, the statute expressly gives an affirmative defense to librarians.

So you don’t have any concern with respect to them.

And although the statute uses the word “procure”, I don’t think it means in the possessory sense, but rather, procure for the purposes of further distribution.

But simply, the statute, we think, is crafted to deal with a very, very serious problem.

A problem that cannot be dealt with by simply prohibiting the use and production.

Seeing my white light, I have five minutes, I would like to reserve that time for rebuttal.

Thank you.

Warren E. Burger:

Mr. Fahringer?

Herald Price Fahringer:

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

It is our view that if this statute is resurrected, it would mark an abrupt departures from an unbroken series of cases extending over a long stretch of this Court’s history, holding as postulate the proposition that whenever any law is conceded, as this one is, to suppress constitutionally-protected material, or non-obscene material, despite the compelling state interest, where there are available alternatives less restrictive, it has never been tolerated.

It is my view, Your Honors, that the New York Court of Appeals condemned this statute because it imposed significant burdens on freedom of speech without any assurances that it would give any added protection to the young people of this country, beyond those already provided by two, what I consider to be, very effective statutes: the law that makes it a felony to use a child in the production of a film or a book, and the law that makes it a felony, increases punishment, if a person sells that book–

What do you think about the validity of that law?

The felony to use a child in making a non-obscene movie.

Herald Price Fahringer:

–I believe it’s valid, Your Honor.

And I say–

Why is that?

Herald Price Fahringer:

–Because, Your Honor, I–

What case supports that in this Court, for example?

Herald Price Fahringer:

–Your Honor, let me say this: I am talking, of course, about sexual conduct.

I can understand–

Well, but you concede that the state may make a felony out of producing a non-obscene movie.

Is that right or not?

Herald Price Fahringer:


Your Honor, what I’m suggesting is… if I can correct my answer to this extent… I think in terms of not nudity, not even lewd nudity.

I think in terms of–

Well, I just asked you a simple question… making a non-obscene movie.

Herald Price Fahringer:

–I welcome it, Your Honor.

Then I would say no, they cannot.

What I was thinking of was taking–

All right.

May they make it a felony to use a child in producing any non-obscene movie that you can think of?

Herald Price Fahringer:

–No, Your Honor, they cannot.

What I say is this… if they used–

Suppose they could.

I thought you conceded in the first place that they could make–

Herald Price Fahringer:

–Because, Your Honor, I was only thinking in terms of sexual conduct, using young children in commission of sexual acts, which per se is obscene.

–I know, but there’s… I suppose there’s a lot of things that might be sexually stimulating that aren’t obscene.

Herald Price Fahringer:

Your Honor, you may be correct.

All right.

May a state forbid using children in sexually-oriented movies that aren’t obscene?

Herald Price Fahringer:

If, Your Honor, there were findings that that would be harmful to the children, I think the state has the power to do that.

In other words, I–

You don’t need to argue about this distribution business.

You just say that the law against production is bad, and a fortiori the distribution is bad.

Herald Price Fahringer:

–Your Honor, that’s not the issue, but I am happy to discuss it with you if you like.

What I’m saying is this: I think throughout this whole area, if it please Your Honor, what happens to all of us is there have been very few actual scientific findings in this area.

They take for granted, Your Honor, that the distribution of a film… and they make this second argument in this case… that this would have some sort of an impact upon the child.

Let’s take a 14 or 15-year old who is photographed nude.

Putting aside sexual conduct.

They say that that, of course, is clearly condemned under the statute and there has to be no finding of obscenity.

Herald Price Fahringer:

I’m not sure what they–

Well, legislatures don’t have to make a finding, though.

This was sufficient for the New York legislature, I take it.

Herald Price Fahringer:

–Well, Your Honor, they obviously had great misgivings about the constitutionality of this statute or they–

Well, they passed it, didn’t they?

Herald Price Fahringer:

–But they wouldn’t have enacted the other section which this section completely duplicates.

I don’t agree with the prosecution in terms of the trial of this case, and I tried it, Your Honor.

Obviously, you have no need for the section that makes it obscene to sell these films if you have a section that says just sexual conduct in itself is enough.

Well, the New York legislature didn’t take your judgment on that point, it passed both statutes, did it not?

Herald Price Fahringer:

But, Your Honor, all I’m–

Did it or did it not?

Herald Price Fahringer:

–Well, Your Honor, all–

Can you answer a question?

Herald Price Fahringer:

–Yes, Your Honor.

Can you answer it either yes or no?

Herald Price Fahringer:

Well, yes, they did, Your Honor.

They had misgivings about Section 6… the 15,.15 section, obviously, because there would have been no need for the one requiring the obscenity.

All I’m saying, Your Honor, if it please you is that creating the two sections, obviously you have to conclude from that, as they did in the commentary under the legislative history, that there would be no need for this section… I’m sorry, there would be no need for the obscenity section if this section was constitutional.

It seems to me the only conclusion you can draw is their fear that this section would be declared unconstitutional and they have an obscenity section.

They have a fullback.

Herald Price Fahringer:

That’s correct, Your Honor.

I didn’t mean to suggest otherwise to the Court.

And, Your Honor, I think in the trial of this case, as a matter of fact, to follow that logic to its conclusion, in the trial of this case if they had found the defendant guilty under either one of the sections, the verdicts would have been repugnant then.

Because obviously, one duplicates oneself inclusive of the other.

I thought from your adversary’s comment that since he says that non-obscenity is not a requirement for this section before us now, that they aren’t duplicative.

Herald Price Fahringer:

Well, one is inclusive.

The non-obscenity section obviously would include the obscenity section because it means… if the two children were just shown participating in anything that was not obscene, the man is convicted.

There would absolutely be no need then to find the obscenity section.

If you found the obscenity section, I suppose there would be no need to go further and find the non-obscenity.

So you regard this as kind of a lesser included offense?

Herald Price Fahringer:

Yes, Your Honor, I would.

And I would think, Your Honor, that a verdict that would have been returned on both counts would have posed very serious–

Could a state legislature make it unlawful, make it a criminal act for an adult to arrange for or induce children aged 7, 8, 9, to engage in these acts?

Herald Price Fahringer:

–I think they could, Your Honor.

Isn’t that what they have done here?

Herald Price Fahringer:

No, not–

In essence, isn’t that what they have done?

Then they have added to that the filming of it, which simply compounds the situation.

But the conduct you admit could be made a criminal act.

Herald Price Fahringer:

–Absolutely, Your Honor.

I have never had a quarrel with the fact… I don’t know scientifically how sound this is, but it seems to me the state has a legitimate interest in regulating the conduct of children below the age of 16 involved in sexual activity, where there is a serious question of whether they’re consenting to it and the harmfulness that, of course, can occur to them.

Can you add one… non-obscene conduct?

Does a state have a legitimate interest in prohibiting non-obscene conduct by children?

Herald Price Fahringer:

I think they could, Your Honor.


And could they then prohibit the filming of it?

Herald Price Fahringer:

I think they could.


Herald Price Fahringer:

I think they could, because–

So now you agree that the state may prohibit the production of non-obscene films in which children are the actors.

Herald Price Fahringer:

–But I think, Your Honor, as a part and parcel that I have to say in answer to your question that there would have to be an indication, some finding, that it was harmful to the children.

Obviously, to do it with children that are–

All right.

Let’s suppose the legislature found it.

Then you would accept it?

Herald Price Fahringer:

–I think, Your Honor, under the circumstances I would.

But what we are dealing with here, Your Honor, is a far cry from that.

And it seems to me that to sustain this statute really does imperil a large body of literature that could be of some worth to society.

And I would like to–

Mr. Fahringer, would you concede that not only is the legislative interest legitimate, but it is compelling in the area of child pornography?

Herald Price Fahringer:

–Absolutely, Your Honor.

It is the most compelling interest that one could imagine for a legislative act?

Herald Price Fahringer:

I’m not sure it’s the most compelling.

I would say drugs might go above that, Your Honor.

But what I say to you is that two statutes, if it please Your Honor, that we now have in existence which came out of that same offensive against child pornography, are more than adequate to deal with the problem.

That’s my only thesis here in this Court.

But not in the legislative view, obviously, or they wouldn’t have passed this additional statute which obviously the legislature determined was essential to get at the problem.

Herald Price Fahringer:

There’s no question, Your Honor, it was an adventure on the part of the legislature to go one step further and to get convictions in this area without the proof of obscenity.

What I’ve said… you know, when they conducted congressional hearings in this matter and experts came from all over the country, as Mr. Pitler pointed out, and the federal government enacted law, with equal concerns just as compelling to them, the conclusion of the consensus of experts was that the child pornography we’re talking about can be easily convicted under an obscenity statute.

And there is no need to eliminate this element and jeopardize all this other literature which could be of some use to society.

That’s what the federal government came to, and I think that’s persuasive, and I think the fact that 26 other states in this country presumably conducting hearings also concluded that they could wage war successfully against pornography–

So it’s your position that it’s very easy for the state to uncover where these films are made and to put a stop to it?

Herald Price Fahringer:

–No, I’m not.

What I’m saying is it’s being prosecuted all over the country, it’s being prosecuted in Miami, Florida right now and federal court in cases I know about it.

And I’ll tell you this, Your Honor.

It seems to me, if I may say this in all due respect, you have that same problem in the drug trade, but no one has ever suggested we reduce the burden of proof in the drug business and eliminate proof beyond a reasonable doubt or presumption of innocence because it’s hard to get convictions.

I think the drug problem in this country is probably paramount to everything else, and yet we haven’t discarded these procedural safeguards that this Court has built up over the years so that it’s easier to convict drug distributors, which is also done in–

Well presumably, the promoter or distributor is well able to know what’s in the film.

It isn’t as though they’re innocent of knowledge of what’s contained in what they’re selling.

Herald Price Fahringer:

–Well let me give you an example, Your Honor.

This book, Show Me, that is prominently featured in both of the briefs is a respectable book, it was produced in Germany with very young children in it, and the book is avowedly for the purpose of educating children in adolescent sex.

Now, that book, Your Honor, certainly… I don’t think anybody in the world would doubt that that book could be prosecuted under this section.

There are people in New York… and this is a matter of public record… that have spoken out against the book and have gone on the air and condemned the book.

So much so that the publisher of that book, of course, launched the declaratory judgment action–

Is there anything in the record about that book?

Herald Price Fahringer:

–Yes, Your Honor, there’s–

Did I understand you to say or imply that you need some experts of some kind to indicate that the conduct involved here is damaging, injurious to young children?

Herald Price Fahringer:

–What I said is this, Your Honor, that I could conceive of the state’s interest in terms of making non-obscene films, people who put children together in non-obscene films and the children are actually engaged in the conduct, that that might be prohibited with a finding that this would be harmful to the children.

I certainly would assume that it’s harmful to the children.

Do you think the members of the legislature need someone else to tell them that this is damaging to children?

Herald Price Fahringer:

Your Honor, let me give you an example.

If you took a 15-year old boy an a 17–

Let’s take a 7 or 8 or 9, because that’s what you’ve got here.

Herald Price Fahringer:

–Your Honor, I don’t think the legislature would need anybody to tell them that.

But you certainly have 14 and 15-year olds under a 16-year statute, a headline, a top, and it seems to me if you took a 15-year old boy and a 16-year old girl and used them to make a sex manual where they were not involved in explicit sexual acts but used it for the purposes of educating adolescents about sexual behavior but it was quite explicit, they were touching one another, I can understand how people might come forward and say that this would not damage these children for the rest of their life if it was done in a clinical environment.

Are you suggesting that this material is beneficial, educational material for children?

Herald Price Fahringer:

Oh, Your Honor,–

Do you seriously advance that?

Herald Price Fahringer:

–Well, Your Honor, what we’re saying is… if it please the Court… I don’t mean to offend you, but in the amicus brief,–

You don’t offend me and I don’t mind if I do offend you on this point.

Herald Price Fahringer:

–But the point of it is in the amicus brief, we have listed the growing number of books that are being used today to educate adolescents in sexual behavior with pictures and photographs, and that’s basically the book Show Me which is discussed in both briefs here and they brought a declaratory action under this statute because they were fearful they were going to be prosecuted.

What if New York simply passed a law, akin to its child labor law, saying that no child shall appear in a moving picture who is under the age of 16?

Herald Price Fahringer:

Because of the historic difference in this Court that we have always made between goods and things of that sort and the First Amendment.

When the picture goes into a book, Your Honor, it becomes an idea, and then it comes–

Well, can you give me an answer to my question?

Herald Price Fahringer:

–I’m sorry, Your Honor.

It’s answerable I think yes or no.

I asked whether or not if New York should, analogously to its child labor laws, pass a statute that said no child under 16 shall appear in a motion picture, just like no children under 16 are allowed to work most other places.

Would that be violative of the First Amendment?

Herald Price Fahringer:

Yes, I can see how it would be, Your Honor.

Do you think it would be?

Herald Price Fahringer:

Well, I could certainly… you mean if you eliminated all 16-year old actresses in this country, they couldn’t make a film and Brooke Shields and everybody else would be out of business?


Herald Price Fahringer:

I think that would be unconstitutional, Your Honor, because I think they’re an integral part of the First Amendment in terms of making these films, and the same way if you said that–

So that the state can prohibit working children under 16 and any other area, but it can’t prohibit them from working in films?

Herald Price Fahringer:

–Your Honor, I’m sorry, if it were not discriminatory.

In other words, if you’re saying they just took 16-year olds and said they couldn’t work in films.

If they said 16-year olds couldn’t work in any industry at all, couldn’t do any kind of–

Including in films.

Herald Price Fahringer:

–I’m sorry, then, Your Honor, I would have to say that would be consistent if the state made that judgment.

Herald Price Fahringer:

It eliminates it then from the First Amendment concern because you’re talking about it across the board… that a 16-year old can’t work at anything in this country, and that would seem to me that–

No First Amendment problem?

Herald Price Fahringer:

–There would be no First Amendment problem.

The state is arguing I think in part that the injury that is being prohibited or avoided by this particular statute is the constant distribution for others to see the recorded pictures or films of these children in sexual conduct, and that it’s the subsequent exhibition and display to other people that adds further harm to the children.

That there is harm above and beyond merely the initial taking of the photograph in the constant viewing by others and the subsequent psychological damage to the children as these acts are reproduced and shown to others.

Now, does the state have no substantial interest in addressing those problems?

Herald Price Fahringer:

Yes, Your Honor, and I think it’s accommodated by the obscenity statute, because those films would be found obscene and they would be illegal anyway in the distribution line.

What I keep coming back to here… and I really think this is the core of our argument… and that is, the statutes that are on the books of New York right now, as the New York Court of Appeals really found, are more than adequate to accommodate these problems.

The problem you just posed is certainly taken care of by an obscenity statute.

You don’t need for that purpose a statute that says any conduct of any kind is forbidden and make it a felony for a person to sell a book like Show Me or Youth and Sex or some of the other books that we demonstrate in the amicus brief here.

I might say this, if it please Your Honor, that there are indications in the amicus brief that this literature, which certainly could lend itself to prosecution under this statute… the district attorney says we would never prosecute anybody like that, but certainly this Court has seen enough evidence of people coming forward and inaugurating prosecutions through prosecutors in small rural communities which are shocking to all of us.

Taking The Fixer out of the library, the Naked Ape, Slaughterhouse Five.

Well, couldn’t we, instead of concentrating on other people’s books and pictures, concentrate on your client’s pictures and books for a moment.

Do you think that your suggestion that the obscenity statute was more than adequate to cover this type of abuse would be agreed to by the person who prosecuted this–

Herald Price Fahringer:


Your Honor, let me tell you what happened in this case.

They went on–

–I’d like to finish my question if you’d allow me to.

There was a conviction on the section of the statutes before us, but an acquittal on the obscenity count.

And I take it if there had been just the obscenity statute in effect, it would have been an acquittal on the only count that was brought.

Herald Price Fahringer:

–The reason for that, if I can tell Your Honor, was that the prosecutor in this case decided to proceed under the unique theory established this by Court in Michigan versus New York and said that these films would only appeal to male homosexuals.

Now, Your Honor, from my standpoint as a trial lawyer, I tell you, that took it right out of the jury’s lap.

The question was, would these movies appeal only to a male homosexual.

Two experts came in and testified that surveys had been run in prisons in Connecticut, and that 87 % of the people were heterosexual and had families.

And another expert came in and testified… at that time, Your Honor, the Kinsey Report on homosexuals had just come out which absolutely contradicted that.

It was a guess on his part, so the jury had a very easy decision.

It was confusing, there was a lot of expert testimony.

But I am convinced, Your Honor, as the person who tried the case that what they found is that the overwhelming empirical evidence was that these films would not appeal to a male homosexual.

Now, I submit to Your Honor as an officer of this Court, had it been tried on the straight obscenity level with the average person sitting in that jury box saying would these films appeal to my morbid or shameful interest in sex, there is no doubt in my mind there would have been a conviction.

What’s that got to do with the injuries to the children, which is the focus of this statute?

Herald Price Fahringer:

Because, Your Honor, what I’m saying is that the injury to the children is accommodated by the law that makes it a crime to use them and by the law that makes their crime–

Is there anything new about having three statutes that you could use alternatively to prosecute particular conduct?

Herald Price Fahringer:

–Only that, Your Honor, the third statute in this case, based upon a long line of decisions out of this Court, goes much further.

It will imperil, it will suppress a good deal of useful literature.

Now, it may not be that medical books are going to be suppressed here, but Your Honor, may I put this question.

What if someone wanted to write a book on child pornography and use some examples of it?

What about Sixty Minutes?

What about the woman that we cite in our brief who actually took some of the material before she wrote the Law Review article?

There’s no question she’s guilty under this statute, and if she had wanted to use any of the examples in her book… if Covenant House, Morality in Media, wanted to advocate their cause with visual pictures in their publication showing what a horrible thing child pornography is in this country, they would be, guilty under this section.

And I just think that’s preposterous.

And I also want to talk about the books that come in from… how about the book, Prostitutes in Bombay?

How about Incest in Peru?

If these books come into this country, books that are surveys of serious sexual problems today dealing with adolescents, none of those books would be available for sale in New York under this section.

Because there’s no question, I think in many of those instances there would be lewd pictures, and there is no question that there might even be sexual conduct.

And yet you could not sell those books in this country, even though they were worthwhile and had some scientific value.

Incidentally, I wanted to just–

Mr. Fahringer, may I interrupt you just a second.

You’ve given the example of the book, Show Me, two or three different times.

Would that book have been lewd within the meaning of the statute?

Herald Price Fahringer:

–Your Honor, I think that there are people who say it would.

Obviously, you know my bias and I don’t think it is.

But I want to tell you this: that there is touching among the young children and–

To what extent did the question of what lewd means… was that presented to the court of appeals in argument?

Herald Price Fahringer:

–It wasn’t, Your Honor.

It wasn’t argued?

Herald Price Fahringer:

I agree with Mr. Pitler.

I was there and I think he was in the courtroom and it was never discussed at all.

But it’s clear to me–

What you’re saying is that a book like that could be argued… could be subject of argument.

Herald Price Fahringer:

–And then you see, it seems to me we come to the most troublesome aspect of all in this case, the chilling effect, the impact it’s going to have on responsible publishers.

Herald Price Fahringer:

A book like Show Me may not be put out because maybe, maybe somewhere in Watertown, New York or in an outlying area, someone might come in and bring a criminal action against the publisher.

So we’ll never know what books, either in sexual manuals, descriptions of adolescent sex or books that have to do with exposes of the problem, will never be published because–

The chilling effect doesn’t have anything on your clients because they don’t even let you know where they made them.

They don’t even want you to know who did it.

Herald Price Fahringer:

–Your Honor, let me say this in all–

That’s true, isn’t it?

Herald Price Fahringer:

–Your Honor, that is not true.

In this case we tried to prove that these films–

Well, is there anything on this film that shows who produced it, anywhere?

Herald Price Fahringer:

–No, Your Honor, all I’m saying is… I wanted to come back to the fact that in the record we made an effort here, we made an offer of proof, to show that these films came in from out of the country.

The judge sustained the objection and we weren’t able to–

You made an offer to prove anything that you wanted to prove, but that wouldn’t have proved it.

Herald Price Fahringer:

–I realize that, Your Honor.

But the fact of the matter is that an awful lot of books and films… and I’m talking now about material that has some scientific value or some literary value… are produced overseas.

And certainly, when they come into this country the American public should have a right to see them.

Could the New York constitution provide by statute that every film must have the name of every actor and participant, every producer, every cameraman and the locations?

Herald Price Fahringer:

That has already been foreclosed in New York by a case up there, Your Honor, that forbids that under the First Amendment.

In the New York–

Herald Price Fahringer:

In the New York Court of Appeals.

They ruled on it, Your Honor… it had to do with publications, but they said that it was unconstitutional to require a publisher to put his name on the pamphlet or the book because it might, of course, inhibit his putting out controversial books.

–Under state law.

Herald Price Fahringer:

Under state law, that’s right, Your Honor.

Under our New York State Constitution.

Does that add weight, then, to the state’s argument that this kind of a statute is necessary under those circumstances to reach the problem?

Herald Price Fahringer:

I don’t think so, Your Honor, because all… all we come back to, it seems to me, is that everything we’re talking about in this Court would be found obscene under the obscenity statute.

One of the things that is disturbing to me is the prosecution hasn’t come forward with any figures, any statistics of any kind to indicate that we simply cannot go forward with these prosecutions without this third section.

There’s no statistics here that we’ve tried 37 child pornography cases and we have only been able to get two convictions.

And I don’t know of any other statistics across the country.

The few Law Review articles that are cited are really very self-serving and they’re speculative by people who have views in the industry.

But it seems to me the only way to go about that in a logical fashion is to say that we can’t get… 26 states apparently feel that they can conduct this campaign against child pornography successfully with what they’ve got, and the federal government feels that way.

Herald Price Fahringer:

Now that, I think, lends force to my position here today that until they come in and show this court, we simply cannot prosecute child pornographers unless we have this third arm, it seems to me that recognizing that it imperils all this other literature, it seems–

But they obviously wanted to go further and prosecute some who were not child pornographers but who violated this third portion of the statute.

I mean, the evil they were striking at was broader than the child pornography in the sense of the constitutionally obscene.

Herald Price Fahringer:

–And what I’m saying in answer to that, Your Honor, because I think that is an incisive question.

One is if it’s the protected material, that they are never going to go after the books and things of that sort, obviously there’s never going to be a prosecution under the so-called legitimate material.

If it’s the other material, that is the 42nd Street Times Square material, that’s going to be found obscene under the obscenity doctrine anyway.

Except in the one case in which you’ve just successfully or partially successfully tried, where they found it not obscene but convicted him under this statute.

Now you have a reason you say that happened, but nonetheless, that is what happened.

Herald Price Fahringer:

No question.

But, Your Honor, I do think that’s a compelling reason.

We don’t have a case were they tried it under a straight obscenity statute where it went to the jury and the jury themselves had to decide whether or not this would appeal to our morbid or shameful interest in sex.

And that’s the case, it seems to me, you need, not a case where it would appeal to a deviant group.

Because I could easily understand how a jury would find this would appeal to us, our own morbid or shameful interest in sex, but it certainly… the evidence is to the contrary with another group.

Your Honor, I would only… since I see that my time is expiring,… the language you used in the Shad case which is one of your most recent cases and one that we rely very heavily on in our brief, where you said that the state has really not established its interests could not be met by methods that are less restrictive on protected forms of expression.

And there you said… and I think it applies to this case… that even if the infringement is incidental and only applies to a small number of cases in the First Amendment area, we must still scrutinize that regulation with great care to see whether or not there are other methods available to reach the state’s objective.

Counsel, you mentioned scrutinize with great care.

Your brief, as I understand it, agrees that the state has a compelling interest in this area.

Did the New York Court of Appeals agree that the state has an interest of that level of scrutiny?

Herald Price Fahringer:

I think they did, Your Honor.

Would you indicate where it said so?

Herald Price Fahringer:

You mean in the decision?

In the opinion.

Herald Price Fahringer:

I’m sorry, I can’t.

I thought it was implied.

I don’t think–

Do you think it was stated expressly?

Herald Price Fahringer:

–It may not have been, Your Honor, I’m sorry.

What I wanted to read to you is this, the very end of–

How can we tell what standard it applied, if it didn’t say so?

Herald Price Fahringer:

–I never doubted for a moment that they agreed that there is a concern, but they said in the end of their opinion those who employ children in obscene plays, films, books are still subject to prosecution in this state, as are those who sell or distribute obscene material.

Herald Price Fahringer:

All we hold today is that those who present films, plays or books portraying adolescent sex in a realistic but not obscene manner cannot be prosecuted under this statute.

But the only interest that I recall the court of appeals having identified is a legitimate interest, which is far short of the compelling interest standard.

Herald Price Fahringer:

Well, that may be correct, Your Honor.

One of the things that you’ve just alerted me to that I haven’t even discussed with this Court is that they spent an awful lot of time finding that this statute was under-inclusive.

They said that if the state’s real concern is the welfare of children, then why isn’t it that they do the same thing with children who over-work long hours and are not paid or whatever, and do dangerous stunts and things of that sort.

And to me, that does make a lot of sense.

I don’t think the court has to go that far.

They even say that it appears as though they’ve just selected this class of material–

It’s not the First Amendment argument, is it?

Herald Price Fahringer:

–Well, it–

What do you think it is?

It’s the due process or an equal protection argument.

It’s not a First Amendment argument.

Herald Price Fahringer:

–Well, it wasn’t Erznoznik because there, what you said in Erznozkik with the drive-in theater that they only picked nudist films to foreclose–

That’s a content-oriented thing.

Herald Price Fahringer:


Well, that’s what this basically is, Your Honor, content-oriented.

I don’t know about that.

Herald Price Fahringer:

The distribution part is.

In any event, there was an awful lot of preoccupation in the court of appeals with that phase of it.

And what I wanted to simply state, the court of appeals said it seems as though they just selected this one narrow area because of the legislator’s distaste for this type of material.

Your Honors, I’ll end as I began, by simply saying that it really seems to me the evidence in this case is compelling, and there’s none to the contrary, that the two statutes that are in existence in New York are more than adequate to deal with this problem.

And it’s unnecessary to impose significant restrains on free speech where there are existing alternatives.

Thank you.

Mr. Fahringer, let me ask you one question before you sit down.

I take it this statute has no civil sanctions or remedies of any kind for this kind of material.

Herald Price Fahringer:

No, it doesn’t, Your Honor.

Would you say that the constitution would tolerate some kind of civil control of this sort of material, the distribution of it?

Herald Price Fahringer:

Well, Your Honor, I would still have some problems with that if it were going to… if it is civil or not, it seems to me it has a deterrent effect, and I would think that it could run afoul of the First Amendment.

Warren E. Burger:

You have five minutes remaining, counsel.

Robert M. Pitler:

Thank you.

May it please the Court, Mr. Chief Justice, let me turn to the under-inclusive argument first.

In Erznoznik, you didn’t have a situation like you have here.

Here you have a market that’s being fed, a dissemination market that’s being fed.

The only way you can get at that market is to ban the dissemination of these materials.

There’s no market for pictures of circus performers made clandestinely, whether they are children walking on tightropes, being shot out of a canon, swinging on the trapeze.

There’s no problem with respect to that market at all, and therefore, the legislature had a very good reason for choosing–

Mr. Pitler, how can we intelligently decide the extent that this market really exists, as a court?

Robert M. Pitler:

–Judge, we have cited in our appendix–

I know, but can we really rely on that?

Robert M. Pitler:

–Judge, the Virginia Supreme Court was prepared to say that the industry was $500 million a year.

And certainly, if the Virginia–

How do I know that?

I mean, if I were a congressman I could find it out, but–

Robert M. Pitler:

–And if you were a state legislator you could, and the New York state legislature did find out and they did make that determination.

And it seems to me that that’s a pretty good finding.

–Did they find the volume of the business and so forth?

Or did they just pass the statute?

Robert M. Pitler:


There, if you look at what we call the bill jacket, you will see comments from various legislators that they had hearings.

One on the Mental Health Committee had a hearing, for example, and they were shown any number of films that were freely produced in the market–

I understand.

But your argument is that these other statutory provisions are not an adequate solution to the problem.

Robert M. Pitler:

–That’s correct, Your Honor.

And those comments were made before these other statutory provisions were passed.

I mean, how do we know how much of the job would have been accomplished by the prohibition against the obscene materials and the prohibition against the non-obscene performances?

We really don’t, do we?

You may be dead right, but I just don’t know how to–

Robert M. Pitler:

Judge, I can’t prove it empirically, it’s true.

But it seems to me that a legislature is entitled to make some findings based on the information that is available to them.

Robert M. Pitler:

And they did make a finding.

I might say that our adversaries have never disputed the size of the child pornography market.

They have never said we are wrong about that.

They never took us up on that.

And we under-estimated in our brief.

We talked about $200 million a year.

Whether it’s $200 million or $500 million, we’ve never been challenged by either the amici or the respondent in that regard.

And it seems to me that, along with the legislature’s finding, should be good enough for this Court.

I can see from your reaction that I’m not persuading you–

–I just don’t know.

When was the statute passed?

Robert M. Pitler:


Yes, so it’s five years.

And has there been any change in the amount of the market during the five years?

Do we know?

Robert M. Pitler:

There was some testimony in a hearing by a police officer… I think Police Officer Rice… who said when this statute was passed, the stuff started to disappear.

And we know it’s because of the provision in dispute here, or because of the other two provisions?

Robert M. Pitler:

No, we do not.

But it disappeared from adult bookstores.

It’s still a very big mail order business in New York.

Let me ask one other question.

I noticed in your reply brief you indicated that most of the horrible examples that the amici and so forth describe in their briefs really wouldn’t be covered by the statute.

But what about the category the Show Me book falls in?

Robert M. Pitler:

You know, Show Me is an interesting case.

You know, we were hauled into district court in New York about Show Me.

As soon as the statute was passed.

And you know, we went in and we said we’ve never even heard of this book; we have no plans to prosecute it, we don’t know–

John Paul Stevens:

But what about it?

Could a prosecutor in a small community in New York successfully prosecute a book seller for selling that book?

Maybe you would not do it in Manhattan.

Robert M. Pitler:

–Your Honor, I don’t know the answer to the question.

It is possible that he could.

There’s at least one picture in there that would cause some concern.

But let me say, Judge, that we’re talking about one book out of so many that–

Well, I think that could be used as an example of a category of educational materials.

Robert M. Pitler:

–No,… let me try to respond to that.

Because in the future, people that are making these books that want to sell them, all they have to do is not use these kind of photographs.

You can get the exact same idea across in sexual education of children without showing children engaged in actual sexual conduct or simulated sexual conduct.

You don’t need to use the children with respect to that.

And if this statute is upheld, people will be aware of that fact.

So I don’t think there is a real fear.

And you can trot out so many books, but there’s… for example, during argument, Prostitutes of Bombay.

There’s nothing in that book that comes within the statute.


That case is not before us.

Robert M. Pitler:

–I understand that.

Warren E. Burger:

Your time has expired, counsel.

Robert M. Pitler:


In sum, the First Amendment is not absolute.

It has to be balanced, and we believe this statute strikes the appropriate balance.

Thank you.

Warren E. Burger:

Thank you, gentlemen, the case is submitted.