Ferber owned an adult
bookstore. He sold books with naked children in them. He was arrested
and charged with violating New York's child pornography law.
Ferber was convicted. He
Ferber argued that the 1st
Amendment guaranteed the right to free
speech, and that included kiddie-porn. Therefore the New York
law was unconstitutional.
Ferber argued that there
was artistic value to the books he sold.
The Appellate Court upheld the
conviction. Ferber appealed.
The New York Supreme Court
reversed. The prosecutor appealed.
The US Supreme Court reversed,
and found that New York's child pornography law was constitutional.
The US Supreme Court found
that material that is obscene is
not covered by 1st Amendment protections of free
The Court found that the
State has a strong interest in protecting children from sexual abuse, and
that compelling government interest was enough to make the child
pornography law a constitutional exception to the 1st
Ferber unsuccessfully argued
that under the standard given in Miller v. California (413 U.S. 15 (1973)), his books were not obscene
because they had some artistic value. However, the Court found that
material could be censored even if it didn't meet the definition of obscene.
Miller found that material is only obscene
if, taken as a whole and applying contemporary community standards, it
lacks serious scientific, literary, artistic, or political value.
As in many other constitutional
issues, this case could be thought of as being a strict scrutiny test. The Court found that the State's
interests were strong enough (aka a compelling government
interest), and the law was narrowly
tailored enough, that it was
constitutional even though it infringed on a constitutional right.
Obscenity is not covered by the 1st
Amendment at all because it is not considered to be 'speech'.
In this case, the Court found that even things that could be considered
'speech' (because they arguably had artistic merit) could still be
censored, as long as the censoring served a compelling government