From: declan@well.com (Declan McCullagh)
Date: Thu, 12 Sep 1996 08:46:04 +0800
To: cypherpunks@toad.com
Subject: The definition of child pornography -- no help here
Message-ID: <v01510109ae5cc70bdc2e@[204.62.128.229]>
MIME-Version: 1.0
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[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.

[...]