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Law School Case Brief

New York v. Ferber - 458 U.S. 747, 102 S. Ct. 3348 (1982)


The scope of the First Amendment overbreadth doctrine must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, the doctrine is employed with hesitation, and then only as a last resort. The overbreadth involved must be "substantial" before the statute involved will be invalidated on its face.


The proprietor of a Manhattan bookstore, respondent Paul Ferber, sold two films to an undercover police officer. The films depicted young boys masturbating. He was convicted for promoting a sexual performance of a child in violation of a New York criminal statute prohibiting persons from knowingly promoting sexual performances by children under 16 by distributing material which depicted such performances, even if the materials were produced out of state, among other things. The law did not require proof that the films were obscene. On appeal, the appellate division affirmed the conviction but the New York Court of Appeals reversed on the ground that the statute violated the First Amendment.


Did N.Y. Penal Law § 263.15 violate the First Amendment?




The Supreme Court of the United States held that § 263.15 did not fail under First Amendment scrutiny. There was nothing constitutionally "under inclusive" about a statute that singled out this category of material—promoting sexual performances by children under 16—for proscription. The First Amendment, the Court held, did not bar the state from prohibiting the distribution of unprotected material produced outside the state. Ferber argument that § 263.15 was "overbroad" because it included medical books and educational sources was without merit, the Court held, because such applications were no more than a tiny fraction of the materials that were within the statute's reach, and whatever overbreadth might have existed was curable through case-by-case analysis of the fact situations.

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