SIGNIFICANCE: NEW YORK V. FERBER
The question in this case was whether a legislature could prohibit the production and distribution of “material which shows children engaged in sexual conduct, regardless of whether such material is obscene.” Non-obscene pornography is generally protected by the First Amendment, but this law sought to ban any sexual material produced using children.
The Supreme Court upheld this ban due to the strong interest the state has in protecting children from sexual abuse, finding that “the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.” While the value of child pornography is “exceedingly modest”, the harm done to the children used in its production is severe, and the material itself serves as a permanent record of the abuse. In order to dry up the market for child pornography (and reduce the number of children abused to produce it), the Court held that it was permissible to prohibit the production and distribution of the material and set child pornography as a category of non-speech outside of the protection of the First Amendment. This rationale was later used to uphold laws that criminalized the possession of child pornography, as well (for example, in Osborne v. Ohio, 495 U.S. 103 (1990)).