Legal Definition of Child Pornography

In the 1982 case New York v. Ferber, the U.S. Supreme Court upheld a New York state statute banning child pornography. This case set a legal precedent that determined, among other things, that child pornography was not required to meet the test for obscenity in order to be banned. Delivering the unanimous decision of the Court, Justice Byron White wrote:

As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment.

(a) The States are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons:

1.    the legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child, easily passes muster under the First Amendment;

2.    the standard of Miller v. California, 413 U.S. 15 , for determining what is legally obscene is not a satisfactory solution to the child pornography problem;

3.    the advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation;

4.    the value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis; and

5.    recognizing and classifying child pornography as a category of material outside the First Amendment’s protection is not incompatible with this Court’s decisions dealing with what speech is unprotected. When a definable class of material, such as that covered by [458 U.S. 747, 748] the New York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment’s protection. [emphasis added]

In effect, the Court’s ruling made the New York law in question a national standard. In addition to banning sexual activity with children, the law also prohibited lewd exhibition of children’s genitals. Later rulings have held that this lewd exhibition need not include nudity, but could also apply to clothed children placed in lascivious poses.

Daniel Weiss is formerly the senior analyst for media and sexuality for CitizenLink, an affiliate of Focus on the Family.

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