Thursday, November 14, 2013

New York v. Ferber case brief

New York v. Ferber case brief summary
458 U.S. 747 (1982)

Respondent appealed a decision of the Court of Appeals of New York holding that N.Y. Penal Law § 263.15 violated the First Amendment because it prohibited the promotion of materials that were entitled to constitutional protection from government interference. Section 263.15was held to be under-inclusive and overbroad.

Respondent, the proprietor of a bookstore, sold two films to an undercover police officer depicting young boys masturbating. He was found guilty on two counts of violating N.Y. Penal Law § 263.15, a law that did not require proof that the films were obscene. The appellate court held that § 263.15 violated the First Amendment.


  • On appeal, the United States Supreme Court reversed. It 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 for proscription. 
  • The First Amendment, the Court held, did not bar the state from prohibiting the distribution of unprotected material produced outside the state. 
  • Respondent argued that § 263.15 was "overbroad," as an impermissible application because it included medical books and educational sources. 
  • The Court held 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.


The Court reversed and remanded, finding that the criminal statute was not under inclusive or overbroad. The statute described a category of material that the production and distribution of which was not entitled to First Amendment protection. On the issue of overbreadth, the arguable impermissible applications were no more than a tiny fraction of the materials within the statute's reach and could be cured by a case by case analysis.

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