Supreme Court Outlaws Child Porn

New York v. Ferber

The U.S. Supreme Court Outlaws Child Pornography

In the early 1980s, an adult bookstore owner by the name of Paul Ferber in Manhattan was accused of violating the criminal law when he sold sex videos of underage boys to undercover police officers.

The case ultimately went all the way to the U.S. Supreme Court.

Associate Justice Byron White wrote an opinion that, effectively, did an end-run around Miller v. California and its three-pronged obscenity test, laying down a much stricter standard when it came to sexual depictions involving underage teens and children.

White wrote:

"In recent years,"-note that White is writing before the Internet-"the exploitive use of children in the production of pornography has become a serious national problem." White goes on to describe the number of states (as well as the federal government) that had outlawed child pornography without regard to whether the pornography qualified as "obscene."

White and the other U.S. Supreme Court Justices unanimously agreed with what the majority of states and the federal government had done, going on to rule that pretty much any type of sexual depiction of children could be criminalized.

Here are the five reasons the Court gave us:

  1. The government has a compelling interest in preventing sexual exploitation of children;
  2. The distribution of sexual depictions of children is intrinsically related to sexual abuse (images of child pornography, for example, are a permanent reminder and record);
  3. Those engaged in producing, advertising and selling child pornography are motivated to do so because of money;
  4. The artistic value of child pornography is negligible; and
  5. Generally speaking, child pornography itself-by virtue of the young ages of those depicted-meets the definition of "obscene" and need not be held to be legally obscene under the Miller test before being criminalized.

As White wrote, "When a definable class of material, such as that covered by [the New York criminal law], bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment."

Note that White was writing about one state's law. State and federal laws change all the time. Often they make potential punishment worse. What "balances competing interests" at one time and in one place-the ongoing tug-of-war between what is permissible and what is not under the criminal law-may not balance competing interests in another time or another place.

In other words, defending child pornography charges is and probably always will be a very fact-specific process. It is case by case. When lawyers say "no two cases are the same," they mean what they say. It is unfair, for example, to face child pornography charges when the person depicted in the picture or video may look young but is not, in fact, underage.