| New York v. Ferber
(No. 81-55)
52 N.Y.2d 674, 422 N.E.2d 523, reversed and remanded. |
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| Syllabus
| Opinion
[ White ] | Concurrence
[ O'Connor ] | Concurrence
[ Brennan ] | Concurrence
[ Stevens ] |
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New York v. Ferber
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
JUSTICE STEVENS, concurring in the judgment.
Two propositions seem perfectly clear to me. First, the specific conduct that gave rise to this criminal prosecution is not protected by the Federal Constitution; second, the state statute that respondent violated prohibits some conduct that is protected by the First Amendment. The critical question, then, is whether this respondent, to whom the statute may be applied without violating the Constitution, may challenge the statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the Court. I agree with the Court's answer to this question, but not with its method of analyzing the issue.
Before addressing that issue, I shall explain why respondent's conviction does not violate the Constitution. The two films that respondent sold contained nothing more than lewd exhibition; there is no claim that the films included any material that had literary, artistic, scientific, or educational value. [n1] Respondent was a willing participant in a commercial market that the State of New York has a legitimate interest in suppressing. The character of the State's interest in protecting children from sexual abuse justifies the imposition [p778] of criminal sanctions against those who profit, directly or indirectly, from the promotion of such films. In this respect, my evaluation of this case is different from the opinion I have expressed concerning the imposition of criminal sanctions for the promotion of obscenity in other contexts. [n2]
A holding that respondent may be punished for selling these two films does not require us to conclude that other users of these very films, or that other motion pictures containing similar scenes, are beyond the pale of constitutional protection. Thus, the exhibition of these films before a legislative committee studying a proposed amendment to a state law, or before a group of research scientists studying human behavior, could not, in my opinion, be made a crime. Moreover, it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection. The question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context.
The Court's holding that this respondent may not challenge New York's statute as overbroad follows its discussion of the contours of the category of nonobscene child pornography that New York may legitimately prohibit. Having defined that category in an abstract setting, [n3] the Court makes the [p779] empirical judgment that the arguably impermissible application of the New York statute amounts to only a "tiny fraction of the materials within the statute's reach." Ante at 773. Even assuming that the Court's empirical analysis is sound, [n4] I believe a more conservative approach to the issue would adequately vindicate the State's interest in protecting its children and cause less harm to the federal interest in free expression.
A hypothetical example will illustrate my concern. Assume that the operator of a New York motion picture theater specializing in the exhibition of foreign feature films is offered a full-length movie containing one scene that is plainly lewd if viewed in isolation, but that nevertheless is part of a serious work of art. If the child actor resided abroad, New York's interest in protecting its young from sexual exploitation would be far less compelling than in the case before us. The federal interest in free expression would, however, be just as strong as if an adult actor had been used. There are at least three different ways to deal with the statute's potential application to that sort of case.
First, at one extreme and as the Court appears to hold, the First Amendment inquiry might be limited to determining [p780] whether the offensive scene, viewed in isolation, is lewd. When the constitutional protection is narrowed in this drastic fashion, the Court is probably safe in concluding that only a tiny fraction of the materials covered by the New York statute is protected. And with respect to my hypothetical exhibitor of foreign films, he need have no uncertainty about the permissible application of the statute; for the one lewd scene would deprive the entire film of any constitutional protection.
Second, at the other extreme and as the New York Court of Appeals correctly perceived, the application of this Court's cases requiring that an obscenity determination be based on the artistic value of a production, taken as a whole, would afford the exhibitor constitutional protection, and result in a holding that the statute is invalid because of its overbreadth. Under that approach, the rationale for invalidating the entire statute is premised on the concern that the exhibitor's understanding about its potential reach could cause him to engage in self-censorship. This Court's approach today substitutes broad, unambiguous, state-imposed censorship for the self-censorship that an overbroad statute might produce.
Third, as an intermediate position, I would refuse to apply overbreadth analysis for reasons unrelated to any prediction concerning the relative number of protected communications that the statute may prohibit. Specifically, I would postpone decision of my hypothetical case until it actually arises. Advocates of a liberal use of overbreadth analysis could object to such postponement on the ground that it creates the risk that the exhibitor's uncertainty may produce self-censorship. But that risk obviously interferes less with the interest in free expression than does an abstract, advance ruling that the film is simply unprotected whenever it contains a lewd scene, no matter how brief.
My reasons for avoiding overbreadth analysis in this case are more qualitative than quantitative. When we follow our [p781] traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous, and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudication.
Moreover, it is probably safe to assume that the category of speech that is covered by the New York statute generally is of a lower quality than most other types of communication. On a number of occasions, I have expressed the view that the First Amendment affords some forms of speech more protection from governmental regulation than other forms of speech. [n5] Today the Court accepts this view, putting the category of speech described in the New York statute in its rightful place near the bottom of this hierarchy. Ante at 761-763. Although I disagree with the Court's position that such speech is totally without First Amendment protection, I agree that, generally, marginal speech does not warrant the extraordinary protection afforded by the overbreadth doctrine. [n6]
Because I have no difficulty with the statute's application in this case, I concur in the Court's judgment.
1. Respondent's counsel conceded at oral argument that a finding that the films are obscene would have been consistent with the Miller definition. Tr. of Oral Arg. 41.
2. See Burch v. Louisiana, 441 U.S. 130, 139 (STEVENS, J., concurring); Pinkus v. United States, 436 U.S. 293, 305 (STEVENS, J., concurring); Ballew v. Georgia, 435 U.S. 223, 245 (STEVENS, J., concurring); Smith v. United States, 431 U.S. 291, 311-321 (STEVENS, J., dissenting); Marks v. United States, 430 U.S. 188, 198 (STEVENS, J., concurring in part and dissenting in part); see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 84 (STEVENS, J., concurring in judgment); FCC v. Pacifica Foundation, 438 U.S. 726, 750 (opinion of STEVENS, J.).
The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: a trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.
Ante at 764.
4. The Court's analysis is directed entirely at the permissibility of the statute's coverage of nonobscene material. Its empirical evidence, however, is drawn substantially from congressional Committee Reports that ultimately reached the conclusion that a prohibition against obscene child pornography -- coupled with sufficiently stiff sanctions -- is an adequate response to this social problem. The Senate Committee on the Judiciary concluded that "virtually all of the materials that are normally considered child pornography are obscene under the current standards," and that,
[i]n comparison with this blatant pornography, non-obscene materials that depict children are very few and very inconsequential.
S.Rep. No. 95-438, p. 13 (1977); see also H.R.Rep. No. 95-696, pp. 7-8 (1977). The coverage of the federal statute is limited to obscene material. See 18 U.S.C. § 2252(a) (1976 ed., Supp. IV).
5. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. at 80, 83 (STEVENS, J., concurring in judgment); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 544-548 (STEVENS, J., concurring in judgment); FCC v. Pacifica Foundation, 438 U.S. at 744-748 (opinion of STEVENS, J.); Carey v. Population Services International, 431 U.S. 678, 716-717 (STEVENS, J., concurring in part and concurring in judgment); Smith v. United States, 431 U.S. at 317-319 (STEVENS, J., dissenting); Young v. American Mini Theatres, Inc., 427 U.S. 50, 66-71 (opinion of STEVENS,J.).
6. See FCC v. Pacifica Foundation, supra, at 742-743 (opinion of STEVENS, J.); Young v. American Mini Theatres, Inc., supra, at 59-61; see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 544-548 (STEVENS, J., dissenting in part); Schad v. Borough of Mount Ephraim, supra, at 85 (STEVENS, J., concurring in judgment).
