New York v. Ferber

458 U.S. 747 (1982)

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Nature of the Case

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Facts

Ferber (D) a proprietor of a Manhattan bookstore specializing in sexually oriented products sold two films of young boys masturbating. D was indicted under a New York law controlling the dissemination of pornography. 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. The New York Court of Appeals reversed, holding that § 263.15 violated the First Amendment. The court began by noting that, in light of § 263.10's explicit inclusion of an obscenity standard, § 263.15 could not be construed to include such a standard. The court held 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.' The Supreme Court granted certiorari.