New York v. Ferber Case Brief

Why is the case important?

The Respondent, Ferber (Respondent), was convicted of distributing child pornography in violation of New York state law.

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.


Is child pornography a form of obscenity that may be constitutionally restricted?


Yes. The prohibition on the sale and distribution of child pornography is constitutional even if the material is not obscene.
Distribution of these materials is intrinsically related to child abuse.
Advertising and selling these types of materials provide an economic motive to engage in illegal activity.
The value of showing children engaged in sex is de minimis.
Concurrence. It is possible for some depictions of child sex acts to have serious literary, artistic, scientific or medical value.


“The Supreme Court of the United States held that § 263.15 did not fail under First Amendment scrutiny. There was nothing constitutionally “”under inclusive”” about a statute that singled out this category of material—promoting sexual performances by children under 16—for proscription. The First Amendment, the Court held, did not bar the state from prohibiting the distribution of unprotected material produced outside the state. Ferber argument that § 263.15 was “”overbroad”” because it included medical books and educational sources was without merit, the Court held, because such applications were no more than a tiny fraction of the materials that were within the statute’s reach, and whatever overbreadth might have existed was curable through case-by-case analysis of the fact situations.”

  • Case Brief: 1982
  • Petitioner: New York
  • Respondent: Ferber
  • Decided by: Burger Court

Citation: 458 US 747 (1982)
Argued: Apr 27, 1982
Decided: Jul 2, 1982