Basically Law

Read the opinion here.

Issue.  Does a law that prohibits the distribution of material of children engaged in sexual conduct ("child pornography") violate the First Amendment when the material cannot be regarded as obscene?

Background.  Ferber owned a bookstore that specialized in selling sexually-oriented materials.  Ferber was convicted under New York's child pornography law for selling movies depicting young boys masturbating.  New York's child pornography law was broader than its obscenity law, so Ferber challenged the constitutionality of the law.   The United States Supreme Court upheld its constitutionality.

Court's Analysis.  The Court held that States had more leeway in regulating sexually explicit materials that depict minors than that which depicts adults.  There are several reasons for allowing this distinction:

1. The State has a strong interest in preventing the sexual exploitation and abuse of minors which occurs in the production of such materials.
2. There is a connection between child pornography and child abuse.  The material itself is a record of that abuse.  Further, child pornography needs to be stopped in order to prevent the sexual exploitation of children.
3. Since there is an economic motive for producing such material, children are being forced to work even though the States could prevent children from working in such an industry, or from working at all.  (Which is what child pornography laws target.)
4. There is little value to using children in producing such material.  "[If] it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized."
5. Banning child pornography is not incompatible with earlier decisions.  The evil to be restricted so overwhelmingly outweighs the expressive interest, that there is no need for a case by case adjudication.

Afterword.  In reality, the actual harm to children through sexual, physical and mental abuse is the main reason why the production, distribution, and possession of child pornography can be criminalized and not violate the First Amendment.  Still, what if it just written material involving a fictitious child?  Or, the pornography is computer generated?  Another case would resolve the issue over computer generate child pornography.