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

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NEW YORK v. FERBER 458 U.S. 747 (1982)

This decision demonstrated the burger court's willingness to add to the list of categories of speech excluded from the first amendment's protection. New York, like the federal government and most of the states, prohibits the distribution of material depicting sexual performances by children under age 16, whether or not the material constitutes obscenity. After a New York City bookseller sold two such films to an undercover police officer, he was convicted under this law. The Supreme Court unanimously affirmed his conviction.

justice byron r. white, for the Court, denied that state power in this regulatory area was confined to the suppression of obscene material. The state's interest in protecting children against abuse was compelling; to prevent the production of such materials, it was necessary to forbid their distribution. child pornography—the visual depiction of sexual conduct by children below a specified age—was "a category of material outside the protection of the First Amendment."

The Court also rejected the argument that the law was overbroad, thus abandoning a distinction announced in broadrick v. oklahoma (1973) to govern overbreadth challenges. Henceforth the overbreadth doctrine would apply only in cases of "substantial overbreadth," whether or not the state sought to regulate the content of speech.

Kenneth L. Karst

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

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