[Note this was before Knox. --Declan] NEW YORK v. FERBER No. 81-55 SUPREME COURT OF THE UNITED STATES 458 U.S. 747; 102 S. Ct. 3348; 1982 U.S. LEXIS 12; 73 L. Ed. 2d 1113; 50 U.S.L.W. 5077; 8 Media L. Rep. 1809 April 27, 1982, Argued July 2, 1982, Decided PRIOR HISTORY: [***1] CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. DISPOSITION: 52 N. Y. 2d 674, 422 N. E. 2d 523, reversed and remanded. SYLLABUS: A New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. The statute defines "sexual performance" as any performance that includes sexual conduct by such a child, and "sexual conduct" is in turn defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent bookstore proprietor was convicted under the statute for selling films depicting young boys masturbating, and the Appellate Division of the New York Supreme Court affirmed. The New York Court of Appeals reversed, holding that the statute violated the First Amendment as being both underinclusive and overbroad. The court reasoned that in light of the explicit inclusion of an obscenity standard in a companion statute banning the knowing dissemination of similarly defined material, the statute in question could not be construed to include an obscenity standard, [***2] and therefore would prohibit the promotion of materials traditionally entitled to protection under the First Amendment. Held: As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment. Pp. 753-774. (a) The States are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons: (1) the legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child, easily passes muster under the First Amendment; (2) the standard of Miller v. California, 413 U.S. 15, for determining what is legally obscene is not a satisfactory solution to the child pornography problem; (3) 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; (4) the value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if [***3] not de minimis; and (5) recognizing and classifying child pornography as a category of material outside the First Amendment's protection is not incompatible with this Court's decisions dealing with what speech is unprotected. [...] ****** Copyright (c) 1994 Albany Law Journal of Science & Technology Albany Law Journal of Science & Technology 1994 4 Alb. L.J. Sci. & Tech. 311 LENGTH: 10368 words COMMENTS: WHY THE POSSESSION OF COMPUTER-GENERATED CHILD PORNOGRAPHY CAN BE CONSTITUTIONALLY PROHIBITED David B. Johnson TEXT: [*312] I. INTRODUCTION The computer revolution is sweeping across the world. Like the Industrial Revolution of the nineteenth and early twentieth century, the computer has brought and will continue to bring profound changes to our society. In many instances, computer technology has advanced faster than the laws governing it. n1 Some critics fear that computer technology is growing so fast that "society will be . . . unprepared [to deal with] the moral and legal havoc it will create and the questions it will pose for human identity and privacy." n2 The computer revolution already has brought society its fair share of moral and legal havoc. n3 However, what is to come will tax society's moral and legal systems on an even greater scale. [...]