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Constitutional Law Keyed to Stone
New York v. Ferber
Citation:
458 U.S. 747 (1982)Facts
In 1977, New York enacted Article 263 of its Penal Law to combat child pornography. Section 263.15 criminalized as a class D felony the promotion of sexual performances by children under 16 years of age. Paul Ferber, who owned a Manhattan bookstore specializing in sexually oriented products, sold two films almost exclusively depicting young boys masturbating to an undercover police officer. He was charged with two counts of promoting obscene sexual performances under §263.10 and two counts of promoting sexual performances by children under §263.15. After a jury trial, Ferber was acquitted of the obscenity charges but convicted of violating §263.15, which did not require proof that the materials were obscene. The New York Court of Appeals reversed his conviction, finding that §263.15 violated the First Amendment because it prohibited the distribution of materials with potential literary, scientific, or educational value and discriminated against visual portrayals of children engaged in sexual activity.
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