stating that “the [s]tates are entitled to greater leeway in the regulation of pornographic depictions of children[,]” that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance[,]” and that “[i]t is evident beyond the need for elaboration that a [s]tate’s interest in safeguarding the physical and psychological well-being of a minor is compelling” (internal quotation marks and citation omitted)
How later courts described this case
- stating that “the [s]tates are entitled to greater leeway in the regulation of pornographic depictions of children[,]” that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance[,]” and that “[i]t is evident beyond the need for elaboration that a [s]tate’s interest in safeguarding the physical and psychological well-being of a minor is compelling” (internal quotation marks and citation omitted)
- stating that child pornography may be regulated as an integral part of the abuse that produced that pornography, and quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834 (1949): "`It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.'"
- stating that child pornography maybe regulated as an integral part of the abuse that produced that pornography, and quoting Giboney v. Empire Storage & Ice Co., 336 US 490, 498, 69 S Ct 684, 93 L Ed 834 (1949): “ ‘It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’ ”
- holding that sexually explicit material involving children generally is not protected by the First Amendment of the federal constitution and, therefore, the distribution, possession, and manufacture of such material constitutionally may be criminalized even if the material is not "obscene" under Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)
Written by the judges who cited it.
Distinguished
Distinguished by United States v. Moreland, 665 F.3d 137 (2011)
In Ferber, the Supreme Court held that child pornography is distinguishable from other sexually explicit speech.
The opinion
Justice Brennan,
with whom Justice Marshall joins,
concurring in the judgment.
I agree with much of what is said in the Court’s opinion. As I made clear in the opinion I delivered for the Court in *776 Ginsburg v. New York, 390 U. S. 629 (1968), the State has a special interest in protecting the well-being of its youth. Id., at 638-641 . See also Globe Newspaper Co. v. Superior Court, 457 U. S. 596, 607 (1982). This special and compelling interest, and the particular vulnerability of children, afford the State the leeway to regulate pornographic material, the promotion of which is harmful to children, even though the State does not have such leeway when it seeks only to protect consenting adults from exposure to such material. Ginsburg v. New York, supra, at 637, 638, n. 6, 642-643, n. 10 . See also Jacobellis v. Ohio, 378 U. S. 184, 195 (1964) (opinion of Brennan, J.). I also agree with the Court that the “tiny fraction,” ante, at 773, of material of serious artistic, scientific, or educational value that could conceivably fall within the reach of the statute is insufficient to justify striking the statute on the grounds of overbreadth. See Broadrick v. Oklahoma, 413 U. S. 601, 630 (1973) (Brennan, J., dissenting).
But in my view application of §263.15 or any similar statute to depictions of children that in themselves do have serious literary, artistic, scientific, or medical value, would violate the First Amendment. As the Court recognizes, the limited classes of speech, the suppression of which does not raise serious First Amendment concerns, have two attributes. They are of exceedingly “slight social value,” and the State has a compelling interest in their regulation. See Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942). The First Amendment value of depictions of children that are in themselves serious contributions to art, literature, or science, is, by definition, simply not “de minimis.” See ante, at 761. At the same time, the State’s interest in suppression of such materials is likely to be far less compelling. For the Court’s assumption of harm to the child resulting from the “permanent record” and “circulation” of the child’s “participation,” ante, at 759, lacks much of its force where the depiction is a serious contribution to art or science. The production of materials of serious value is not the “low- *777 profile, clandestine industry” that according to the Court produces purely pornographic materials. See ante, at 760. In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed “material outside the protection of the First Amendment.” See ante, at 763.
I, of course, adhere to my view that, in the absence of exposure, or particular harm, to juveniles or unconsenting adults, the State lacks power to suppress sexually oriented materials. See, e. g., Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973) (Brennan, J., dissenting). With this understanding, I concur in the Court’s judgment in this case.