BRENNAN, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

458 U.S. 747

New York v. Ferber

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

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 [p776] Ginsburg v. New York, 390 U.S. 629 (1968), the State has a special interest in protecting the wellbeing 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 [p777] 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.