11 Unprotected Categories: Obscenity

Child Pornography as a Distinct Unprotected Category

The final topic in this chapter references the legal issue of child pornography which, as referenced above at points, has become a separate unprotected category, with different rules than those in standard obscenity doctrine. The basic difference, as the Court argued in Ferber v. New York (1980), is that children are actually harmed in the creation of child pornography, and, unlike adult actors, cannot give legal consent to engage in sexual behavior. As such, the Court has made it considerably easier for states and the federal government to prosecute the creation, distribution, and even possession of such material (Stanley, note, does not protect individuals from possessing child pornography).

The specific legal conflict in Ferber was whether child pornography had to meet the standards of Miller in order to be banned. In a unanimous decision, the Court ruled that it did not. So for example, nude photos of adults without more could not be considered legally obscene materials, while nude photos of minors could lead to prosecution.

Ferber v. New York

458 US 747 (1982)

Facts: New York law prohibited individuals from distributing material that contains a “sexual performance” by a child under 16. The definition of this term included both sexual acts and “lewd exhibition of the genitals.” Ferber—a bookstore owner—was convicted under this law for selling films that contained sexual performances. After New York’s highest court reversed the conviction on the grounds of the First Amendment (it said the law was underinclusive because it only applied to minors, and overbroad because it might reach medical or educational sources), the state appealed.

Question: Can New York ban the distribution of materials that show minors engaged in sexual conduct, even if the material would not be obscene if it involved adults?

Vote: Yes, 9-0

For the Court: Justice White

Concurring opinion: Justice O’Connor

Concurring opinion: Justice Brennan

Concurring in the judgment: Justice Stevens

JUSTICE WHITE delivered the opinion of the Court.

At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.

I

In recent years, the exploitive use of children in the production of pornography has become a serious national problem. The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.

New York is one of the 20:

A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.

… This case arose when Paul Ferber, the proprietor of a Manhattan bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating §263.10 and two counts of violating §263.15, the two New York laws controlling dissemination of child pornography. After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under §263.15, which did not require proof that the films were obscene. Ferber’s convictions were affirmed without opinion by the Appellate Division of the New York State Supreme Court.

The New York Court of Appeals reversed… Although the court recognized the State’s “legitimate interest in protecting the welfare of minors” and noted that this “interest may transcend First Amendment concerns,” it nevertheless found two fatal defects in the New York statute. Section 263.15 was underinclusive because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity. It was also overbroad because it prohibited the distribution of materials produced outside the State, as well as materials, such as medical books and educational sources, which “deal with adolescent sex in a realistic but nonobscene manner.” We granted the State’s petition for certiorari…

II

The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in § 263.10, which follows the guidelines enunciated in Miller v. California (1973), constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that “nonobscene adolescent sex” could not be singled out for special treatment…

The Court of Appeals’ assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children.

A

… Over the past decade, we have adhered to the guidelines expressed in Miller, which subsequently has been followed in the regulatory schemes of most States…

B

The Miller standard, like its predecessors, was an accommodation between the State’s interests in protecting the “sensibilities of unwilling recipients” from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.

First. It is evident beyond the need for elaboration that a State’s interest in “safeguarding the physical and psychological wellbeing of a minor” is “compelling.” … Accordingly, we have sustained legislation aimed at protecting the physical and emotional wellbeing of youth even when the laws have operated in the sensitive area of constitutionally protected rights…

The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance…

Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating “child pornography.” The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.

Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious, if not the only practical, method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product….

Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be “patently offensive” in order to have required the sexual exploitation of a child for its production… “It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value.” We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.

Third. The advertising and selling of child pornography provide an economic motive for, and are thus an integral part of, the production of such materials, an activity illegal throughout the Nation…

Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work…

Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions… Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required…

C

There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed…

As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant.

D

Section 263.15’s prohibition incorporates a definition of sexual conduct that comports with the above-stated principles…

III

It remains to address the claim that the New York statute is unconstitutionally overbroad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. Respondent prevailed on that ground below, and it is to that issue that we now turn…

A

The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court…

What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle, and must be justified by “weighty countervailing policies.” The doctrine is predicated on the sensitive nature of protected expression: “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.”

It is for this reason that we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected, and could be proscribed by a law drawn with the requisite specificity.

The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted…

The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression…

Indeed, the Court’s practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in toto, but rather to reverse the particular conviction…

Applying these principles, we hold that § 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications… While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of § 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction…

IV

As applied to Paul Ferber and to others who distribute similar material, the statute does not violate the First Amendment as applied to the States through the Fourteenth…

JUSTICE O’CONNOR, concurring.

Although I join the Court’s opinion, I write separately to stress that the Court does not hold that New York must except “material with serious literary, scientific, or educational value,” from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York’s current statute is not sufficiently overbroad to support respondent’s facial attack. The compelling interests identified in today’s opinion, suggest that the Constitution might, in fact, permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions…

An exception for depictions of serious social value, moreover, would actually increase opportunities for the content-based censorship disfavored by the First Amendment. As drafted, New York’s statute does not attempt to suppress the communication of particular ideas. The statute permits discussion of child sexuality, forbidding only attempts to render the “portrayal[s] somewhat more realistic’ by utilizing or photographing children.” Thus, the statute attempts to protect minors from abuse without attempting to restrict the expression of ideas by those who might use children as live models.

On the other hand, it is quite possible that New York’s statute is overbroad because it bans depictions that do not actually threaten the harms identified by the Court. For example, clinical pictures of adolescent sexuality, such as those that might appear in medical textbooks, might not involve the type of sexual exploitation and abuse targeted by New York’s statute. Nor might such depictions feed the poisonous “kiddie porn” market that New York and other States have attempted to regulate. Similarly, pictures of children engaged in rites widely approved by their cultures, such as those that might appear in issues of the National Geographic, might not trigger the compelling interests identified by the Court. It is not necessary to address these possibilities further today, however, because this potential overbreadth is not sufficiently substantial to warrant facial invalidation of New York’s statute.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment.

[omitted]

JUSTICE STEVENS, concurring in the judgment.

[omitted]