U.S. Supreme Court New York v. Ferber, 458
U.S. 747 (1982) New York v. Ferber No. 81-55 Argued April 27, 1982 Decided July 2, 1982 458
U.S. 747 CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK Syllabus A New York statute prohibits persons from knowingly promoting a
sexual performance by a child under the age of 16 by distributing
material which depicts such a performance. The statute defines
"sexual performance" as any performance that includes sexual
conduct by such a child, and "sexual conduct" is in turn defined as
actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals. Respondent bookstore proprietor was
convicted under the statute for selling films depicting young boys
masturbating, and the Appellate Division of the New York Supreme
Court affirmed. The New York Court of Appeals reversed, holding
that the statute violated the First Amendment as being both
underinclusive and overbroad. The court reasoned that, in light of
the explicit inclusion of an obscenity standard in a companion
statute banning the knowing dissemination of similarly defined
material, the statute in question could not be construed to include
an obscenity standard, and therefore would prohibit the promotion
of materials traditionally entitled to protection under the First
Amendment. Held: 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. Pp. 458 U. S.
753 -774.

															(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 the New Page 458 U. S. 748 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. Pp. 458 U. S.
756 -764.

															(b) The New York statute describes a category of material the
production and distribution of which is not entitled to First
Amendment protection. Accordingly, there is nothing
unconstitutionally "underinclusive" about the statute, and the
State is not barred by the First Amendment from prohibiting the
distribution of such unprotected materials produced outside the
State. Pp. 458 U. S.
764 -766.

															(c) Nor is the New York statute unconstitutionally overbroad as
forbidding the distribution of material with serious literary,
scientific, or educational value. The substantial overbreadth rule
of Broadrick v. Oklahoma, 413 U.
S. 601 , applies. This is the paradigmatic case of a
state statute whose legitimate reach dwarfs its arguably
impermissible applications.

															"[W]hatever overbreadth may exist should be cured through
case-by-case analysis of the fact situations to which [the
statute's] sanctions, assertedly, may not be applied." Broadrick v. Oklahoma, supra, at 413 U. S.
615 -616. Pp. 458 U. S.
766 -774.

															52 N.Y.2d 674, 422 N.E.2d 523, reversed and remanded.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR,
J., filed a concurring opinion, post, p. 458 U. S. 774 .
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined, post, p. 458 U. S. 775 .
BLACKMUN, J., concurred in the result. STEVENS, J., filed an
opinion concurring in the judgment, post, p. 458 U. S.
777 . Page 458 U. S. 749 JUSTICE WHITE delivered the opinion of the Court.

															At issue in this case is the constitutionality of a New York
criminal statute which prohibits persons from knowingly promoting
sexual performances by children under the age of 16 by distributing
material which depicts such performances. I In recent years, the exploitive use of children in the
production of pornography has become a serious national problem.
[ Footnote 1 ] The Federal
Government and 47 States have sought to combat the problem with
statutes specifically directed at the production of child
pornography. At least half of such statutes do not require that the
materials produced be legally obscene. Thirty-five States and the
United States Congress have also passed legislation prohibiting the
distribution of such materials; 20 States prohibit the distribution
of material depicting children engaged in sexual conduct without
requiring that the material be legally obscene. [ Footnote 2 ] Page 458 U. S. 750 New York is one of the 20. In 1977, the New York Legislature
enacted Article 263 of its Penal Law. N.Y.Penal Law, Art. 263
(McKinney 1980). Section 263.05 criminalizes as a class C felony
the use of a child in a sexual performance:

															"A person is guilty of the use of a child in a sexual
performance if knowing the character and content thereof he
employs, authorizes or induces a child less than sixteen years of
age to engage in a sexual performance or being a parent, legal
guardian or custodian of such child, Page 458 U. S. 751 he consents to the participation by such child in a sexual
performance."

															A "[s]exual performance" is defined as "any performance or part
thereof which includes sexual conduct by a child less than sixteen
years of age." § 263.00(1). "Sexual conduct" is in turn defined in
§ 263.00(3):

															"'Sexual conduct' means actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals."

															A performance is defined as "any play, motion picture,
photograph or dance" or "any other visual representation exhibited
before an audience." § 263.00(4).

															At issue in this case is § 263.15, defining a class D felony:
[ Footnote 3 ]

															"A person is guilty of promoting a sexual performance by a child
when, knowing the character and content thereof, he produces,
directs or promotes any performance which includes sexual conduct
by a child less than sixteen years of age."

															To "promote" is also defined:

															"'Promote' means to procure, manufacture, issue, sell, give,
provide, lend, mail, deliver, transfer, transmute, publish,
distribute, circulate, disseminate, present, exhibit or advertise,
or to offer or agree to do the same."

															§ 263.00(5). A companion provision bans only the knowing
dissemination of obscene material. § 263.10.

															This case arose when Paul Ferber, the proprietor of a
Manhattan Page 458 U. S. 752 bookstore specializing in sexually oriented products, sold two
films to an undercover police officer. The films are devoted almost
exclusively to depicting young boys masturbating. Ferber was
indicted on two counts of violating § 263.10 and two counts of
violating § 263.15, the two New York laws controlling dissemination
of child pornography. [ Footnote
4 ] After a jury trial, Ferber was acquitted of the two counts
of promoting an obscene sexual performance, but found guilty of the
two counts under § 263.15, which did not require proof that the
films were obscene. Ferber's convictions were affirmed without
opinion by the Appellate Division of the New York State Supreme
Court. 74 App.Div.2d 558, 424 N.Y.S.2d 967 (1980).

															The New York Court of Appeals reversed, holding that § 263.15
violated the First Amendment. 52 N.Y.2d 674, 422 N.E.2d 523 (1981).
The court began by noting that, in light of § 263.10's explicit
inclusion of an obscenity standard, § 263.15 could not be construed
to include such a standard. Therefore,

															"the statute would . . . prohibit the promotion of materials
which are traditionally entitled to constitutional protection from
government interference under the First Amendment."

															52 N.Y.2d at 678, 422 N.E.2d at 525. Although the court
recognized the State's "legitimate interest in protecting the
welfare of minors" and noted that this "interest may transcend
First Amendment concerns," id. at 679, 422 N.E.2d at
525-526, it nevertheless found two fatal defects in the New York
statute. Section 263.15 was underinclusive because it discriminated
against visual portrayals of children engaged in sexual activity by
not also prohibiting the distribution of films of other dangerous
activity. It was also overbroad because it prohibited the
distribution of materials produced outside the State, as well as
materials, such as medical books and educational sources, which Page 458 U. S. 753 "deal with adolescent sex in a realistic but nonobscene manner."
52 N.Y.2d at 681, 422 N.E.2d at 526. Two judges dissented. We
granted the State's petition for certiorari, 454 U.S. 1052 (1981),
presenting the single question:

															"To prevent the abuse of children who are made to engage in
sexual conduct for commercial purposes, could the New York State
Legislature, consistent with the First Amendment, prohibit the
dissemination of material which shows children engaged in sexual
conduct, regardless of whether such material is obscene?" II The Court of Appeals proceeded on the assumption that the
standard of obscenity incorporated in § 263.10, which follows the
guidelines enunciated in Miller v. California, 413 U. S. 15 (1973), [ Footnote 5 ]
constitutes the appropriate line dividing protected from
unprotected expression by which to measure a regulation directed at
child pornography. It was on the premise that "nonobscene
adolescent sex" could not be singled out for special treatment that
the court found § 263.15 "strikingly underinclusive." Moreover, the
assumption that the constitutionally permissible regulation of
pornography could not be more extensive with respect to the
distribution of material depicting children may also have led the
court to conclude that a narrowing construction of § 263.15 was
unavailable.

															The Court of Appeals' assumption was not unreasonable in light
of our decisions. This case, however, constitutes our first
examination of a statute directed at and limited to depictions of
sexual activity involving children. We believe our inquiry should
begin with the question of whether a State has somewhat more
freedom in proscribing works which portray sexual acts or lewd
exhibitions of genitalia by children. Page 458 U. S. 754 A In Chaplinsky v. New Hampshire, 315 U.
S. 568 (1942), the Court laid the foundation for the
excision of obscenity from the realm of constitutionally protected
expression:

															"There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene. . . . It has been well observed that such utterances
are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in
order and morality." Id. at 315 U. S.
571 -572 (footnotes omitted).

															Embracing this judgment, the Court squarely held in Roth v.
United States, 354 U. S. 476 (1957), that "obscenity is not within the area of constitutionally
protected speech or press." Id. at 354 U. S. 485 .
The Court recognized that "rejection of obscenity as utterly
without redeeming social importance" was implicit in the history of
the First Amendment: the original States provided for the
prosecution of libel, blasphemy, and profanity, and the

															"universal judgment that obscenity should be restrained [is]
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 states, and in the 20 obscenity
laws enacted by Congress from 1842 to 1956." Id. at 354 U. S.
484 -485 (footnotes omitted). Roth was followed by 15 years during which this Court
struggled with "the intractable obscenity problem." Interstate
Circuit, Inc. v. Dallas, 390 U. S. 676 , 390 U. S. 704 (1968) (opinion of Harlan, J.). See, e.g., Redrup v. New
York, 386 U. S. 767 (1967). Despite considerable vacillation over the proper definition
of obscenity, a majority of the Members of the Court remained firm
in the position that

															"the States have a legitimate interest in prohibiting
dissemination or exhibition of obscene material when the mode of
dissemination carries with it a significant danger of offending the
sensibilities of Page 458 U. S. 755 unwilling recipients or of exposure to juveniles." Miller v. California, supra, at 413 U. S. 119 (footnote omitted); Stanley v. Georgia, 394 U.
S. 557 , 394 U. S. 567 (1969); Ginsberg v. New York, 390 U.
S. 629 , 390 U. S.
637 -643 (1968); Interstate Circuit, Inc. v. Dallas,
supra, at 390 U. S. 690 ; Redrup v. New York, supra, at 386 U. S. 769 ; Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 195 (1964).

															Throughout this period, we recognized "the inherent dangers of
undertaking to regulate any form of expression." Miller v.
California, supra, at 413 U. S. 23 . Consequently, our difficulty was not only
to assure that statutes designed to regulate obscene materials
sufficiently defined what was prohibited, but also to devise
substantive limits on what fell within the permissible scope of
regulation. In Miller v. California, supra, a majority of
the Court agreed that a

															"state offense must also be limited to works which, taken as a
whole, appeal to the prurient interest in sex, which portray sexual
conduct in a patently offensive way, and which, taken as a whole,
do not have serious literary, artistic, political, or scientific
value." Id. at 413 U. S. 24 .
Over the past decade, we have adhered to the guidelines expressed
in Miller, [ Footnote 6 ] which
subsequently has been followed in the regulatory schemes of most
States. [ Footnote 7 ] Page 458 U. S. 756 B The Miller standard, like its predecessors, was an
accommodation between the State's interests in protecting the
"sensibilities of unwilling recipients" from exposure to
pornographic material and the dangers of censorship inherent in
unabashedly content-based laws. Like obscenity statutes, laws
directed at the dissemination of child pornography run the risk of
suppressing protected expression by allowing the hand of the censor
to become unduly heavy. For the following reasons, however, we are
persuaded that the States are entitled to greater leeway in the
regulation of pornographic depictions of children. First. It is evident beyond the need for elaboration
that a State's interest in "safeguarding the physical and
psychological Page 458 U. S. 757 wellbeing of a minor" is "compelling." Globe Newspaper Co.
v. Superior Court, 457 U. S. 596 , 457 U. S. 607 (1982). "A democratic society rests, for its continuance, upon the
healthy, well-rounded growth of young people into full maturity as
citizens." Prince v. Massachusetts, 321 U.
S. 158 , 321 U. S. 168 (1944). Accordingly, we have sustained legislation aimed at
protecting the physical and emotional wellbeing of youth even when
the laws have operated in the sensitive area of constitutionally
protected rights. In Prince v. Massachusetts, supra, the
Court held that a statute prohibiting use of a child to distribute
literature on the street was valid notwithstanding the statute's
effect on a First Amendment activity. In Ginsberg v. New York,
supra, we sustained a New York law protecting children from
exposure to nonobscene literature. Most recently, we held that the
Government's interest in the "wellbeing of its youth" justified
special treatment of indecent broadcasting received by adults as
well as children. FCC v. Pacifica Foundation, 438 U.
S. 726 (1978).

															The prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance. The
legislative findings accompanying passage of the New York laws
reflect this concern:

															"[T]here has been a proliferation of exploitation of children as
subjects in sexual performances. The care of children is a sacred
trust and should not be abused by those who seek to profit through
a commercial network based upon the exploitation of children. The
public policy of the state demands the protection of children from
exploitation through sexual performances."

															1977 N.Y.Laws, ch. 910, § 1. [ Footnote 8 ] Page 458 U. S. 758 We shall not second-guess this legislative judgment. Respondent
has not intimated that we do so. Suffice it to say that virtually
all of the States and the United States have passed legislation
proscribing the production of or otherwise combating "child
pornography." The legislative judgment, as well as the judgment
found in the relevant literature, is that the use of children as
subjects of pornographic materials is harmful to the physiological,
emotional, and mental health of the child. [ Footnote 9 ] That judgment, we think, easily passes
muster under the First Amendment. Page 458 U. S. 759 Second. The distribution of photographs and films
depicting sexual activity by juveniles is intrinsically related to
the sexual abuse of children in at least two ways. First, the
materials produced are a permanent record of the children's
participation and the harm to the child is exacerbated by their
circulation. [ Footnote 10 ]
Second, the distribution network for child pornography must be
closed if the production of material which requires the sexual
exploitation of children is to be effectively controlled. Indeed,
there is no serious contention that the legislature was unjustified
in believing that it is difficult, if Page 458 U. S. 760 not impossible, to halt the exploitation of children by pursuing
only those who produce the photographs and movies. While the
production of pornographic materials is a low profile, clandestine
industry, the need to market the resulting products requires a
visible apparatus of distribution. The most expeditious, if not the
only practical, method of law enforcement may be to dry up the
market for this material by imposing severe criminal penalties on
persons selling, advertising, or otherwise promoting the product.
Thirty-five States and Congress have concluded that restraints on
the distribution of pornographic materials are required in order to
effectively combat the problem, and there is a body of literature
and testimony to support these legislative conclusions. [ Footnote 11 ] Cf. United States
v. Darby, 312 U. S. 100 (1941) (upholding federal restrictions on sale of goods
manufactured in violation of Fair Labor Standards Act).

															Respondent does not contend that the State is unjustified in
pursuing those who distribute child pornography. Rather, he argues
that it is enough for the State to prohibit the distribution of
materials that are legally obscene under the Miller test.
While some States may find that this approach properly accommodates
its interests, it does not follow Page 458 U. S. 761 that the First Amendment prohibits a State from going further.
The Miller standard, like all general definitions of what
may be banned as obscene, does not reflect the State's particular
and more compelling interest in prosecuting those who promote the
sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals
to the prurient interest of the average person bears no connection
to the issue of whether a child has been physically or
psychologically harmed in the production of the work. Similarly, a
sexually explicit depiction need not be "patently offensive" in
order to have required the sexual exploitation of a child for its
production. In addition, a work which, taken on the whole, contains
serious literary, artistic, political, or scientific value may
nevertheless embody the hardest core of child pornography. "It is
irrelevant to the child [who has been abused] whether or not the
material . . . has a literary, artistic, political or social
value." Memorandum of Assemblyman Lasher in Support of § 263.15. We
therefore cannot conclude that the Miller standard is a
satisfactory solution to the child pornography problem. [ Footnote 12 ] Third. 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. [ Footnote
13 ]

															"It rarely has been suggested that Page 458 U. S. 762 the constitutional freedom for speech and press extends its
immunity to speech or writing used as an integral part of conduct
in violation of a valid criminal statute." Giboney v. Empire Storage & Ice Co., 336 U.
S. 490 , 336 U. S. 498 (1949). [ Footnote 14 ] We
note that, were the statutes outlawing the employment of children
in these films and photographs fully effective, and the
constitutionality of these laws has not been questioned, the First
Amendment implications would be no greater than that presented by
laws against distribution: enforceable production laws would leave
no child pornography to be marketed. [ Footnote 15 ] Fourth. The value of permitting live performances and
photographic reproductions of children engaged in lewd sexual
conduct is exceedingly modest, if not de minimis. We
consider it unlikely that visual depictions of children performing
sexual acts or lewdly exhibiting their genitals would often
constitute an important and necessary part of a literary
performance Page 458 U. S. 763 or scientific or educational work. As a state judge in this case
observed, if it were necessary for literary or artistic value, a
person over the statutory age who perhaps looked younger could be
utilized. [ Footnote 16 ]
Simulation outside of the prohibition of the statute could provide
another alternative. Nor is there any question here of censoring a
particular literary theme or portrayal of sexual activity. The
First Amendment interest is limited to that of rendering the
portrayal somewhat more "realistic" by utilizing or photographing
children. Fifth. Recognizing and classifying child pornography as
a category of material outside the protection of the First
Amendment is not incompatible with our earlier decisions. "The
question whether speech is, or is not, protected by the First
Amendment often depends on the content of the speech." Young v.
American Mini Theatres, Inc., 427 U. S.
50 , 427 U. S. 66 (1976) (opinion of STEVENS, J., joined by BURGER, C.J., and WHITE
and REHNQUIST JJ.). See also FCC v. Pacifica Foundation, 438 U. S. 726 , 438 U. S.
742 -748 (1978) (opinion of STEVENS, J., joined by
BURGER, C.J., and REHNQUIST, J.). "[I]t is the content of [an]
utterance that determines whether it is a protected epithet or an
unprotected fighting comment.'" Young v. American Mini
Theatres, Inc., supra, at 427 U. S. 66 . See Chaplinsky v. New Hampshire, 315 U.
S. 568 (1942). Leaving aside the special considerations
when public officials are the target, New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), a libelous publication is not protected by the
Constitution. Beauharnais v. Illinois, 343 U.
S. 250 (1952). Thus, it is not rare that a content-based
classification of speech has been accepted because it may be
appropriately generalized that within the confines of the given
classification, the evil to be restricted so overwhelmingly
outweighs Page 458 U. S. 764 the expressive interests, if any, at stake, that no process of
case-by-case adjudication is required. When a definable class of
material, such as that covered by § 263.15, bears so heavily and
pervasively on the welfare of children engaged in its production,
we think the balance of competing interests is clearly struck, and
that it is permissible to consider these materials as without the
protection of the First Amendment. C There are, of course, limits on the category of child
pornography which, like obscenity, is unprotected by the First
Amendment. As with all legislation in this sensitive area, the
conduct to be prohibited must be adequately defined by the
applicable state law, as written or authoritatively construed. Here
the nature of the harm to be combated requires that the state
offense be limited to works that visually depict sexual conduct by
children below a specified age. [ Footnote 17 ] The category of "sexual conduct" proscribed
must also be suitably limited and described.

															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. We note that the distribution Page 458 U. S. 765 of descriptions or other depictions of sexual conduct, not
otherwise obscene, which do not involve live performance or
photographic or other visual reproduction of live performances,
retains First Amendment protection. As with obscenity laws,
criminal responsibility may not be imposed without some element of
scienter on the part of the defendant. Smith v.
California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S.
87 (1974). D Section 263.15's prohibition incorporates a definition of sexual
conduct that comports with the above-stated principles. The
forbidden acts to be depicted are listed with sufficient precision
and represent the kind of conduct that, if it were the theme of a
work, could render it legally obscene:

															"actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-masochistic
abuse, or lewd exhibition of the genitals."

															§ 263.00(3). The term "lewd exhibition of the genitals" is not
unknown in this area and, indeed, was given in Miller as
an example of a permissible regulation. 413 U.S. at 413 U. S. 25 . A
performance is defined only to include live or visual depictions:
"any play, motion picture, photograph or dance . . . [or] other
visual representation exhibited before an audience." § 263.00(4).
Section 263.15 expressly includes a scienter requirement.

															We hold that § 263.15 sufficiently describes a category of
material the production and distribution of which is not entitled
to First Amendment protection. It is therefore clear that there is
nothing unconstitutionally "underinclusive" about a statute that
singles out this category of material for proscription. [ Footnote 18 ] It also follows that
the State is not barred by Page 458 U. S. 766 the First Amendment from prohibiting the distribution of
unprotected materials produced outside the State. [ Footnote 19 ] III It remains to address the claim that the New York statute is
unconstitutionally overbroad because it would forbid the
distribution of material with serious literary, scientific, or
educational value or material which does not threaten the harms
sought to be combated by the State. Respondent prevailed on that
ground below, and it is to that issue that we now turn.

															The New York Court of Appeals recognized that overbreadth
scrutiny has been limited with respect to conduct-related
regulation, Broadrick v. Oklahoma, 413 U.
S. 601 (1973), but it did not apply the test enunciated
in Broadrick because the challenged statute, in its view,
was directed at "pure speech." The court went on to find that §
263.15 was fatally overbroad:

															"[T]he statute would prohibit the showing of any play or movie
in which a child portrays a defined sexual act, real or simulated,
in a nonobscene manner. It would also prohibit the sale, showing,
or distributing of medical or educational materials containing
photographs of such acts. Page 458 U. S. 767 Indeed, by its terms, the statute would prohibit those who
oppose such portrayals from providing illustrations of what they
oppose."

															52 N.Y.2d at 678, 422 N.E.2d at 525.

															While the construction that a state court gives a state statute
is not a matter subject to our review, Wainwright v.
Stone, 414 U. S. 21 , 414 U. S. 22 -23
(1973); Gooding v. Wilson, 405 U.
S. 518 , 405 U. S. 520 (1972), this Court is the final arbiter of whether the Federal
Constitution necessitated the invalidation of a state law. It is
only through this process of review that we may correct erroneous
applications of the Constitution that err on the side of an overly
broad reading of our doctrines and precedents, as well as state
court decisions giving the Constitution too little shrift. A state
court is not free to avoid a proper facial attack on federal
constitutional grounds. Bigelow v. Virginia, 421 U.
S. 809 , 421 U. S. 817 (1975). By the same token, it should not be compelled to entertain
an overbreadth attack when not required to do so by the
Constitution. A The traditional rule is that a person to whom a statute may
constitutionally be applied may not challenge that statute on the
ground that it may conceivably be applied unconstitutionally to
others in situations not before the Court. Broadrick v.
Oklahoma, supra, at 413 U. S. 610 ; United States v. Raines, 362 U. S. 17 , 362 U. S. 21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 , 301 U. S. 513 (1937); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U. S. 217 , 226 U. S.
219 -220 (1912). In Broadrick, we recognized
that this rule reflects two cardinal principles of our
constitutional order: the personal nature of constitutional rights, McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 429 (1961), and prudential limitations on constitutional adjudication.
[ Footnote 20 ] In United
States v. Raines, supra, at 362 U. S. 21 ,
we Page 458 U. S. 768 noted the "incontrovertible proposition" that it

															"'would indeed be undesirable for this Court to consider every
conceivable situation which might possibly arise in the application
of complex and comprehensive legislation,'"

															(quoting Barrows v. Jackson, 346 U.
S. 249 , 346 U. S. 256 (1953)). By focusing on the factual situation before us, and
similar cases necessary for development of a constitutional rule,
[ Footnote 21 ] we face
"flesh-and-blood" [ Footnote
22 ] legal problems with data "relevant and adequate to an
informed judgment." [ Footnote
23 ] This practice also fulfills a valuable institutional
purpose: it allows state courts the opportunity to construe a law
to avoid constitutional infirmities.

															What has come to be known as the First Amendment overbreadth
doctrine is one of the few exceptions to this principle, and must
be justified by "weighty countervailing policies." United
States v. Raines, supra, at 362 U. S. 223 .
The doctrine is predicated on the sensitive nature of protected
expression:

															"persons whose expression is constitutionally protected may well
refrain from exercising their rights for fear of criminal sanctions
by a statute susceptible of application to protected
expression." Village of Schaumburg
v. Page 458 U. S. 769 Citizens for a Better Environment, 444 U.
S. 620 , 444 U. S. 634 (1980); Gooding v. Wilson, supra, at 405 U. S. 521 .
It is for this reason that we have allowed persons to attack overly
broad statutes even though the conduct of the person making the
attack is clearly unprotected, and could be proscribed by a law
drawn with the requisite specificity. Dombrowski v.
Pfister, 380 U. S. 479 , 380 U. S. 486 (1965); Thornhill v. Alabama, 310 U. S.
88 , 310 U. S. 97 -98
(1940); United States v. Raines, supra, at 362 U. S. 21 -22; Gooding v. Wilson, supra, at 405 U. S.
521 .

															The scope of the First Amendment overbreadth doctrine, like most
exceptions to established principles, must be carefully tied to the
circumstances in which facial invalidation of a statute is truly
warranted. Because of the wide-reaching effects of striking down a
statute on its face at the request of one whose own conduct may be
punished despite the First Amendment, we have recognized that the
overbreadth doctrine is "strong medicine," and have employed it
with hesitation, and then "only as a last resort." Broadrick, 413 U.S. at 413 U. S. 613 .
We have, in consequence, insisted that the overbreadth involved be
"substantial" before the statute involved will be invalidated on
its face. [ Footnote 24 ] Page 458 U. S. 770 In Broadrick, we explained the basis for this
requirement:

															"[T]he plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional
rules of practice, and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from 'pure speech' toward
conduct, and that conduct -- even if expressive -- falls within the
scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct. Although such laws, if too
broadly worded, may deter protected speech to some unknown extent,
there comes a point where that effect -- at best a prediction --
cannot, with confidence, justify invalidating a statute on its
face, and so prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to proscribe. Cf.
Aldelman v. United States, 394 U. S. 165 , 394 U. S.
174 -175 (1969)." Id. at 413 U. S. 615 .
We accordingly held that,

															"particularly where conduct, and not merely speech, is involved,
we believe that the overbreadth of a statute must not only be real,
but substantial as well, judged in relation to the statute's
plainly legitimate sweep." Ibid. [ Footnote
25 ] Page 458 U. S. 771 Broadrick examined a regulation involving restrictions
on political campaign activity, an area not considered "pure
speech," and thus it was unnecessary to consider the proper
overbreadth test when a law arguably reaches traditional forms of
expression such as books and films. As we intimated in Broadrick, the requirement of substantial overbreadth
extended "at the very least" to cases involving conduct plus
speech. This case, which poses the question squarely, convinces us
that the rationale of Broadrick is sound, and should be
applied in the present context involving the harmful employment of
children to make sexually explicit materials for distribution.

															The premise that a law should not be invalidated for overbreadth
unless it reaches a substantial number of impermissible
applications is hardly novel. On most occasions involving facial
invalidation, the Court has stressed the embracing sweep of the
statute over protected expression. [ Footnote 26 ] Page 458 U. S. 772 Indeed, JUSTICE BRENNAN observed in his dissenting opinion in Broadrick: "We have never held that a statute should be held invalid on its
face merely because it is possible to conceive of a single
impermissible application, and in that sense, a requirement of
substantial overbreadth is already implicit in the doctrine." Id. at 413 U. S. 630 .
The requirement of substantial overbreadth is directly derived from
the purpose and nature of the doctrine. While a sweeping statute,
or one incapable of limitation, has the potential to repeatedly
chill the exercise of expressive activity by many individuals, the
extent of deterrence of protected speech can be expected to
decrease with the declining reach of the regulation. [ Footnote 27 ] This observation
appears equally applicable to the publication of books and films as
it is to activities, such as picketing or participation in election
campaigns, which have previously been categorized as involving
conduct plus speech. We see no appreciable difference between the
position of a publisher or bookseller in doubt as to the reach of
New York's child pornography law and the situation faced by the
Oklahoma state employees with respect to that State's restriction
on partisan political activity. Indeed, it could reasonably be
argued that the bookseller, with an economic incentive to sell
materials that may fall within the statute's scope, may be less
likely to be deterred than the employee who wishes to engage in
political campaign activity. Cf. Bates v. State Bar of
Arizona, 433 U. S. 350 , 433 U. S.
380 -381 (1977) (overbreadth analysis inapplicable to
commercial speech).

															This requirement of substantial overbreadth may justifiably be
applied to statutory challenges which arise in defense Page 458 U. S. 773 of a criminal prosecution as well as civil enforcement or
actions seeking a declaratory judgment. Cf. Parker v.
Levy, 417 U. S. 733 , 417 U. S. 760 (1974). Indeed, the Court's practice when confronted with ordinary
criminal laws that are sought to be applied against protected
conduct is not to invalidate the law in toto, but rather
to reverse the particular conviction. Cantwell v.
Connecticut, 310 U. S. 296 (1940); Edwards v. South Carolina, 372 U.
S. 229 (1973). We recognize, however, that the penalty
to be imposed is relevant in determining whether demonstrable
overbreadth is substantial. We simply hold that the fact that a
criminal prohibition is involved does not obviate the need for the
inquiry or a priori warrant a finding of substantial
overbreadth.

															Applying these principles, we hold that § 263.15 is not
substantially overbroad. We consider this the paradigmatic case of
a state statute whose legitimate reach dwarfs its arguably
impermissible applications. New York, as we have held, may
constitutionally prohibit dissemination of material specified in §
263.15. While the reach of the statute is directed at the hard core
of child pornography, the Court of Appeals was understandably
concerned that some protected expression, ranging from medical
textbooks to pictorials in the National Geographic would fall prey
to the statute. How often, if ever, it may be necessary to employ
children to engage in conduct clearly within the reach of § 263.15
in order to produce educational, medical, or artistic works cannot
be known with certainty. Yet we seriously doubt, and it has not
been suggested, that these arguably impermissible applications of
the statute amount to more than a tiny fraction of the materials
within the statute's reach. Nor will we assume that the New York
courts will widen the possibly invalid reach of the statute by
giving an expansive construction to the proscription on "lewd
exhibition[s] of the genitals." Under these circumstances, § 263.15
is

															"not substantially overbroad, and . . . whatever overbreadth may
exist Page 458 U. S. 774 should be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not be
applied." Broadrick v. Oklahoma, 413 U.S. at 413 U. S.
615 -616. IV Because § 263.15 is not substantially overbroad, it is
unnecessary to consider its application to material that does not
depict sexual conduct of a type that New York may restrict
consistent with the First Amendment. As applied to Paul Ferber and
to others who distribute similar material, the statute does not
violate the First Amendment as applied to the States through the
Fourteenth. [ Footnote 28 ]
The judgment of the New York Court of Appeals is reversed, and the
case is remanded to that court for further proceedings not
inconsistent with this opinion. So ordered. JUSTICE BLACKMUN concurs in the result.

															[ Footnote 1 ]

															"[C]hild pornography and child prostitution have become highly
organized, multimillion dollar industries that operate on a
nationwide scale." S.Rep. No. 95-438, p. 5 (1977). One researcher
has documented the existence of over 260 different magazines which
depict children engaging in sexually explicit conduct. Ibid. "Such magazines depict children, some as young as three to five
years of age. . . . The activities featured range from lewd poses
to intercourse, fellatio, cunnilingus, masturbation, rape, incest
and sado-masochism." Id. at 6. In Los Angeles alone, police reported that
30,000 children have been sexually exploited. Sexual Exploitation
of Children, Hearings before the Subcommittee on Select Education
of the House Committee on Education and Labor, 95th Cong., 1st
Sess., 41-42 (1977).

															[ Footnote 2 ]

															In addition to New York, 19 States have prohibited the
dissemination of material depicting children engaged in sexual
conduct regardless of whether the material is obscene.
Ariz.Rev.Stat.Ann. § 13-3553 (Supp.1981-1982); Colo.Rev.Stat. §
18403 (Supp.1981); Del. Code Ann., Tit. 11, §§ 1108, 1109 (1979);
Fla.Stat. § 847.014 (1981); Haw. Rev.Stat. § 707-751 (Supp.1981);
Ky.Rev.Stat. §§ 531.320, 531.340-531.360 (Supp.1980);
La.Rev.Stat.Ann. § 14:81.1(A)(3) (West Supp.1982); Mass.Gen.Laws
Ann., ch. 272, § 29A (West Supp.1982-1983); Mich.Comp.Laws Ann. §
750.145c(3) (1982-1983); Miss.Code Ann. § 97-5-33(4) (Supp.1981);
Mont.Code Ann. § 45625 (1981); N.J.Stat.Ann. § 2C:24-4(b)(5) (West
1981); Okla.Stat., Tit. 21, § 1021.2 (1981); Pa.Stat.Ann., Tit. 18,
§ 6312(c) (Purdon 1982-1983); R.I.Gen.Laws § 11-9-1.1 (1981);
Tex.Penal Code Ann. § 43.25 (1982); Utah Code Ann. §
76-10-1206.5(3) (Supp.1981); W.Va.Code § 61-8C3 (Supp.1981);
Wis.Stat. § 940.203(4) (1979-1980).

															Fifteen States prohibit the dissemination of such material only
if it is obscene. Ala.Code §§ 13-7-231, 13-7-232 (Supp.1981);
Ark.Stat.Ann. § 41-4204 (Supp.1981); Cal.Penal Code Ann. § 311.2(b)
(West Supp.1982) (general obscenity statute); Ill.Rev.Stat., ch.
38, � 11-20a(b)(1) (1979); Ind.Code § 35-30-10.1-2 (1979);
Me.Rev.Stat.Ann., Tit. 17, § 2923(1) (Supp.1981-1982); Minn.Stat.
§§ 617.246(3) and (4) (1980); Neb.Rev.Stat. § 28-1463(2) (1979);
N.H.Rev.Stat.Ann. § 650:2(II) (Supp.1981); N.D.Cent.Code §
12.1-27.1-01 (1976) (general obscenity statute); Ohio Rev.Code Ann.
§ 2907.321(A) (1982); Ore.Rev.Stat. § 163.485 (1981); S.D.Codified
Laws §§ 22-22-24, 22-22-25 (1979); Tenn.Code Ann. § 39-1020
(Supp.1981); Wash.Rev.Code § 9.68 A. 030 (1981). The federal
statute also prohibits dissemination only if the material is
obscene. 18 U.S.C. § 2252(a) (1976 ed., Supp. IV). Two States
prohibit dissemination only if the material is obscene as to
minors. Conn.Gen.Stat. § 53a-196b (1981); Va.Code § 18.2-374.1
(1982).

															Twelve States prohibit only the use of minors in the production
of the material. Alaska Stat.Ann. § 11.41.455 (1978); Ga.Code §
26-9943a(b) (1978); Idaho Code § 44-1306 (1977); Iowa Code § 728.12
(1981); Kan.Stat.Ann. § 21516 (1981); Md.Ann.Code, Art. 27, § 419A
(Supp.1981); Mo.Rev.Stat. § 568.060(1)(b) (1978); Nev.Rev.Stat. §
200.509 (1981); N.M.Stat.Ann. § 301 (Supp.1982); N.C.Gen.Stat. §
14-190.6 (1981); S.C.Code § 115-380 (Supp.1981); Wyo.Stat. §
14102(a)(v)(E) (1978).

															[ Footnote 3 ]

															Class D felonies carry a maximum punishment of imprisonment for
up to seven years as to individuals, and as to corporations a fine
of up to $10,000. N.Y. Penal Law §§ 70.00, 80.10 (McKinney 1975).
Respondent Ferber was sentenced to 45 days in prison.

															[ Footnote 4 ]

															A state judge rejected Ferber's First Amendment attack on the
two sections in denying a motion to dismiss the indictment. 96
Misc.2d 669, 409 N.Y.S.2d 632 (1978).

															[ Footnote 5 ]

															N.Y. Penal Law § 235.00(1) (McKinney 1980); People v.
Illardo, 48 N.Y.2d 408, 415, and n. 3, 399 N.E.2d 59, 62-63,
and n. 3 (1979).

															[ Footnote 6 ] Hamling v. United States, 418 U. S.
87 (1974); Jenkins v. Georgia, 418 U.
S. 153 (1974); Ward v. Illinois, 431 U.
S. 767 (1977); Marks v. United States, 430 U. S. 188 (1977); Pinkus v. United States, 436 U.
S. 293 (1978).

															[ Footnote 7 ]

															Thirty-seven States and the District of Columbia have either
legislatively adopted or judicially incorporated the Miller test for obscenity. Ala.Code § 13A-12-150
(Supp.1981); Ariz.Rev.Stat.Ann. § 13-3501(2) (1978); Ark.Stat.Ann.
§ 41-3502(6) (Supp.1981); Colo.Rev.Stat. § 18-7-101(2) (Supp.1981);
Del. Code Ann., Tit. 11, § 1364 (1979); Larkin v. United
States, 363
A.2d 990 (D.C.1976); Ga.Code § 26-2101(b) (1978); Haw.
Rev.Stat. § 712-1210(6) (Supp.1981); Idaho Code § 184101(A) (1979);
Iowa Code § 728.4 (1981) (only child pornography covered); Ind.Code
§ 35-30-10.1-1(c) (1979); Kan.Stat.Ann. § 21-4301 (2)(a) (1981);
Ky.Rev.Stat. § 531.010(3) (1975); La.Rev.Stat.Ann. §§ 14:106(A)(2)
and (A)(3) (West Supp.1982); Ebert v. Maryland State Bd. of
Censors, 19 Md.App. 300, 313 A.2d 536 (1973); Mass.Gen.Laws Ann., ch. 272, § 31 (West
Supp.1982-1983); People v. Neumayer, 405 Mich. 341, 275 N.W.2d
230 (1979), State v. Welke, 298 Minn. 402, 216 N.W.2d
641 (1974); Mo.Rev.Stat. § 573.010(1) (1978); Neb.Rev.Stat. §
28-807(9) (1979); Nev.Rev.Stat. § 201.235 (1981); N.H.Rev.Stat.Ann.
§ 650:1(IV) (Supp.1981); N.J.Stat.Ann. § 2C:32 (West 1981); N.Y.
Penal Law § 235.00(1) (McKinney 1980); N.C.Gen.Stat. § 14-190.1(b)
(1981); N.D.Cent.Code § 12.1-27.1-01(4) (1976); State v.
Burgun, 56 Ohio St.2d 354, 384 N.E.2d 255 (1978); McCrary
v. State, 533 P.2d
629 (Okla.Crim.App.1974); Ore.Rev.Stat. § 167.087(2) (1981);
Pa.Stat.Ann., Tit. 18, § 5903(b) (Purdon Supp.1982-1983);
R.I.Gen.Laws § 11-31-1198(1); S.C.Code § 16-15-260(a) (Supp.1981);
S.D.Codified Laws § 22-24-27(10) (1979); Tenn.Code Ann. §
39-3001(1) (Supp.1981); Tex.Penal Code Ann. § 43.21(a) (1982); Utah
Code Ann. § 76-10-1203(1) (1978); Va.Code § 18.2-372 (1982); 1982
Wash.Laws., ch. 184, § 1(2).

															Four States continue to follow the test approved in Memoirs
v. Massachusetts, 383 U. S. 413 (1966). Cal.Penal Code Ann. § 311(a) (West Supp.1982);
Conn.Gen.Stat. § 53a-193 (1981); Fla.Stat. § 847.07 (1981);
Ill.Rev.Stat., ch. 38, � 11-20(b) (1979). Five States regulate only
the distribution of pornographic material to minors.
Me.Rev.Stat.Ann., Tit. 17, § 2911 (Supp.1981-1982); Mont.Code Ann.
§ 45201 (1981); N.M.Stat.Ann. § 30-37-2 (Supp.1982); Vt.Stat.Ann.,
Tit. 13, § 2802 (1974); W.Va.Code § 61-8A-2 (1977). Three state
obscenity laws do not fall into any of the above categories.
Miss.Code Ann. § 97-29-33 (1973), declared invalid in ABC
Interstate Theatres, Inc. v. State, 325 So. 2d
123 (Miss.1976); Wis.Stat. § 944.21(1)(a) (1979-1980), declared
invalid in State v. Princess Cinema of Milwaukee, Inc., 96
Wis.2d 646, 292 N.W.2d
807 (1980); Wyo.Stat. § 6-5-303 (1977). Alaska has no current
state obscenity law.

															A number of States employ a different obscenity standard with
respect to material distributed to children. See, e.g., Fla.Stat. § 847.0125 (1981).

															[ Footnote 8 ]

															In addition, the legislature found

															"the sale of these movies, magazines and photographs depicting
the sexual conduct of children to be so abhorrent to the fabric of
our society that it urge[d] law enforcement officers to
aggressively seek out and prosecute . . . the peddlers . . . of
this filth by vigorously applying the sanctions contained in this
act."

															1977 N.Y. Laws, ch. 910, § 1.

															[ Footnote 9 ]

															"[T]he use of children as . . . subjects of pornographic
materials is very harmful to both the children and the society as a
whole." S.Rep. No. 95-438, p. 5 (1977). It has been found that
sexually exploited children are unable to develop healthy
affectionate relationships in later life, have sexual dysfunctions,
and have a tendency to become sexual abusers as adults. Schoettle,
Child Exploitation: A Study of Child Pornography, 19
J.Am.Acad.Child Psychiatry 289, 296 (1980) (hereafter cited as
Child Exploitation); Schoettle, Treatment of the Child Pornography
Patient, 137 Am.J.Psychiatry 1109, 1110 (1980); Densen-Gerner,
Child Prostitution and Child Pornography: Medical, Legal, and
Societal Aspects of the Commercial Exploitation of Children,
reprinted in U.S. Dept. of Health and Human Services, Sexual Abuse
of Children: Selected Readings 77, 80 (1980) (hereafter cited as
Commercial Exploitation) (sexually exploited children predisposed
to self-destructive behavior such as drug and alcohol abuse or
prostitution). See generally Burgess & Holmstrom,
Accessory-to-Sex: Pressure, Sex, and Secrecy, in A. Burgess, A.
Groth, L. Holmstrom, & S. Sgroi, Sexual Assault of Children and
Adolescents 85, 94 (1978); V. De Francis, Protecting the Child
Victim of Sex Crimes Committed by Adults 169 (1969); Ellerstein
& Canavan, Sexual Abuse of Boys, 134 Am. J. Diseases of
Children 255, 256-257 (1980); Finch, Adult Seduction of the Child:
Effects on the Child, Medical Aspects of Human Sexuality 170, 185
(Mar.1973); Groth, Sexual Trauma in the Life Histories of Rapists
and Child Molesters, 4 Victimology 10 (1979). Sexual molestation by
adults is often involved in the production of child sexual
performances. Sexual Exploitation of Children, A Report to the
Illinois General Assembly by the Illinois Legislative Investigating
Commission 30-31 (1980). When such performances are recorded and
distributed, the child's privacy interests are also invaded. See n 10, infra. [ Footnote 10 ]

															As one authority has explained:

															"[P]ornography poses an even greater threat to the child victim
than does sexual abuse or prostitution. Because the child's actions
are reduced to a recording, the pornography may haunt him in future
years, long after the original misdeed took place. A child who has
posed for a camera must go through life knowing that the recording
is circulating within the mass distribution system for child
pornography."

															Shouvlin, Preventing the Sexual Exploitation of Children: A
Model Act, 17 Wake Forest L.Rev. 535, 545 (1981). See also Child Exploitation 292 ("[I]t is the fear of exposure and the
tension of keeping the act secret that seem to have the most
profound emotional repercussions"); Note, Protection of Children
from Use in Pornography: Toward Constitutional and Enforceable
Legislation, 12 U. Mich.J.Law Reform 295, 301 (1979) (hereafter
cited as Use in Pornography) (interview with child psychiatrist)
("The victim's knowledge of publication of the visual material
increases the emotional and psychic harm suffered by the
child").

															Thus, distribution of the material violates "the individual
interest in avoiding disclosure of personal matters." Whalen v.
Roe, 429 U. S. 589 , 429 U. S. 599 (1977). Respondent cannot undermine the force of the privacy
interests involved here by looking to Cox Broadcasting Corp. v.
Cohn, 420 U. S. 469 (1975), and Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), cases protecting the right of newspapers to publish,
respectively, the identity of a rape victim and a youth charged as
a juvenile offender. Those cases only stand for the proposition
that,

															"if a newspaper lawfully obtains truthful information about a
matter of public significance, then state officials may not
constitutionally punish publication of the information, absent a
need . . . of the highest order." Id. at 443 U. S.
103 .

															[ Footnote 11 ] See Sexual Exploitation of Children, Hearings before
the Subcommittee on Crime of the House Judiciary Committee, 95th
Cong., 1st Sess., 34 (1977) (statement of Charles Rembar) ("It is
an impossible prosecutorial job to try to get at the acts
themselves"); id. at 11 (statement of Frank Osanka,
Professor of Social Justice and Sociology) ("[W]e have to be very
careful . . . that we don't take comfort in the existence of
statutes that are on the books in the connection with the use of
children in pornography. . . . There are usually no witnesses to
these acts of producing pornography"); id. at 69
(statement of Investigator Lloyd Martin, Los Angeles Police
Department) (producers of child pornography use false names making
difficult the tracing of material back from distributor). See
also L. Tribe, American Constitutional Law 666, n. 62 (1978);
Note, Child Pornography: A New Role for the Obscenity Doctrine,
1978 U.Ill.Law Forum 711, 716, n. 29; Use in Pornography 315
("passage of criminal laws aimed at producers without similar
regulation of distributors will arguably shift the production
process further underground").

															[ Footnote 12 ]

															In addition, legal obscenity under Miller is a function
of "contemporary community standards." 413 U.S. at 413 U. S.
24 .

															"It is neither realistic nor constitutionally sound to read the
First Amendment as requiring that the people of Maine or
Mississippi accept public depiction of conduct found tolerable in
Las Vegas, or New York City." Id. at 413 U. S. 32 . It
would be equally unrealistic to equate a community's toleration for
sexually oriented material with the permissible scope of
legislation aimed at protecting children from sexual exploitation.
Furthermore, a number of States rely on stricter obscenity tests, see n 7, supra, under which successful prosecution for child
pornography may be even more difficult.

															[ Footnote 13 ]

															One state committee studying the problem declared: "The act of
selling these materials is guaranteeing that there will be
additional abuse of children." Texas House Select Committee on
Child Pornography: Its Related Causes and Control 132 (1978). See also Commercial Exploitation 80 ("Printed materials
cannot be isolated or removed from the process involved in
developing them").

															[ Footnote 14 ]

															In Giboney, a unanimous Court held that labor unions
could be restrained from picketing a firm in support of a secondary
boycott which a State had validly outlawed. In Pittsburgh Press
Co. v. Pittsburgh Comm'n on Human Relations, 413 U.
S. 376 (1973), the Court allowed an injunction against a
newspaper's furtherance of illegal sex discrimination by placing of
job advertisements in gender-designated columns. The Court
stated:

															"Any First Amendment interest which might be served by
advertising an ordinary commercial proposal and which might
arguably outweigh the governmental interest supporting the
regulation is altogether absent when the commercial activity itself
is illegal and the restriction on advertising is incidental to a
valid limitation on economic activity." Id. at 389.

															[ Footnote 15 ]

															In this connection, we note that 18 U.S.C. § 2251 (1976 ed.,
Supp. IV), making it a federal offense for anyone to use children
under the age of 16 in the production of pornographic materials,
embraces all "sexually explicit conduct" without imposing an
obscenity test. In addition, half of the state laws imposing
criminal liability on the producer do not require the visual
material to be legally obscene. Use in Pornography 307-308.

															[ Footnote 16 ]

															96 Misc.2d at 676, 409 N.Y.S.2d at 637. This is not merely a
hypothetical possibility. See Brief for Petitioner 25 and
examples cited therein.

															[ Footnote 17 ]

															Sixteen States define a child as a person under age 18. Four
States define a child as under 17 years old. The federal law and 16
States, including New York, define a child as under 16. Illinois
and Nebraska define a child as a person under age 16 or who appears
as a prepubescent. Ill.Rev.Stat., ch. 38, � 11-20a(a)(1)(A) (1979);
Neb.Rev.Stat. § 28-1463 (1979). Indiana defines a child as one who
is or appears to be under 16. Ind.Code. §§ 35-30-10.1-2,
35-30-10.1-3 (1979). Kentucky provides for two age classifications
(16 and 18) and varies punishment according to the victim's age.
Ky.Rev.Stat. §§ 531.300-531.370 (Supp.1980). See Use in
Pornography 307, n. 71 (collecting statutes).

															[ Footnote 18 ] Erznoznik v. City of Jacksonville, 422 U.
S. 205 (1975), relied upon by the Court of Appeals,
struck down a law against drive-in theaters showing nude scenes if
movies could be seen from a public place. Since nudity, without
more is protected expression, id. at 422 U. S. 213 ,
we proceeded to consider the underinclusiveness of the ordinance.
The Jacksonville ordinance impermissibly singled out movies with
nudity for special treatment while failing to regulate other
protected speech which created the same alleged risk to traffic.
Today, we hold that child pornography as defined in § 263.15 is
unprotected speech subject to content-based regulation. Hence, it
cannot be underinclusive or unconstitutional for a State to do
precisely that.

															[ Footnote 19 ]

															It is often impossible to determine where such material is
produced. The Senate Report accompanying federal child pornography
legislation stressed that

															"it is quite common for photographs or films made in the United
States to be sent to foreign countries to be reproduced and then
returned to this country in order to give the impression of foreign
origin."

															S.Rep. No. 95-438, p. 6 (1977). In addition, States have not
limited their distribution laws to material produced within their
own borders because the maintenance of the market itself

															"leaves open the financial conduit by which the production of
such material is funded and materially increases the risk that
[local] children will be injured."

															52 N.Y.2d 674, 688, 422 N.E.2d 523, 531 (1981) (Jasen, J.,
dissenting).

															[ Footnote 20 ]

															In addition to prudential restraints, the traditional rule is
grounded in Art. III limits on the jurisdiction of federal courts
to actual cases and controversies.

															"This Court, as is the case with all federal courts, 'has no
jurisdiction to pronounce any statute, either of a State or of the
United States, void, because irreconcilable with the Constitution,
except as it is called upon to adjudge the legal rights of
litigants in actual controversies. In the exercise of that
jurisdiction, it is bound by two rules, to which it has rigidly
adhered, one, never to anticipate a question of constitutional law
in advance of the necessity of deciding it; the other, never to
formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied.' Liverpool, New
York & Philadelphia S.S. Co. v. Commissioners of
Emigration, 113 U. S. 33 , 113 U. S.
39 ." United States v. Raines, 362 U. S.
17 , 362 U. S. 21 (1960).

															[ Footnote 21 ]

															Overbreadth challenges are only one type of facial attack. A
person whose activity may be constitutionally regulated
nevertheless may argue that the statute under which he is convicted
or regulated is invalid on its face. See, e.g., Terminiello v.
City of Chicago, 337 U. S. 1 , 337 U. S. 5 (1949). See generally Monaghan, Overbreadth, 1981
S.Ct.Rev. 1, 10-14.

															[ Footnote 22 ]

															A. Bickel, The Least Dangerous Branch 115-116 (1962).

															[ Footnote 23 ]

															Frankfurter & Hart, The Business of the Supreme Court at
October Term, 1934, 49 Harv.L.Rev. 68, 95-96 (1935).

															[ Footnote 24 ]

															When a federal court is dealing with a federal statute
challenged as overbroad, it should, of course, construe the statute
to avoid constitutional problems, if the statute is subject to such
a limiting construction. Crowell v. Benson, 285 U. S.
22 , 285 U. S. 62 (1932). Accord, e.g., Haynes v. United States, 390 U. S. 85 , 390 U. S. 92 (1968) (dictum); Schneider v. Smith, 390 U. S.
17 , 390 U. S. 27 (1968); United States v. Rumely, 345 U. S.
41 , 345 U. S. 45 (1953); Ashwander v. TVA, 297 U.
S. 288 , 297 U. S. 348 (1936) (Brandeis, J., concurring). Furthermore, if the federal
statute is not subject to a narrowing construction and is
impermissibly overbroad, it nevertheless should not be stricken
down on its face; if it is severable, only the unconstitutional
portion is to be invalidated. United States v. Thirty-seven
Photographs, 402 U. S. 363 (1971).

															A state court is also free to deal with a state statute in the
same way. If the invalid reach of the law is cured, there is no
longer reason for proscribing the statute's application to
unprotected conduct. Here, of course, we are dealing with a state
statute on direct review of a state court decision that has
construed the statute. Such a construction is binding on us.

															[ Footnote 25 ] Parker v. Levy, 417 U. S. 733 , 417 U. S. 760 (1974) ("This Court has . . . repeatedly expressed its reluctance
to strike down a statute on its face where there were a substantial
number of situations to which it might be validly applied. Thus,
even if there are marginal applications in which a statute would
infringe on First Amendment values, facial invalidation is
inappropriate if the remainder of the statute . . . covers a
whole range of easily identifiable and constitutionally
proscribable . . . conduct. . . .' CSC v. Letter Carriers, 413 U. S. 548 , 413 U. S.
580 -581 (1973)"). See Bogen, First Amendment
Ancillary Doctrines, 37 Md.L.Rev. 679, 712-714 (1978); Note, The
First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 860-861
(1970). [ Footnote 26 ]

															In Gooding v. Wilson, 405 U. S. 518 , 405 U. S. 519 , 405 U. S. 527 (1972), the Court's invalidation of a Georgia statute making it a
misdemeanor to use " opprobrious words or abusive language,
tending to cause a breach of the peace'" followed from state
judicial decisions indicating that "merely to speak words offensive
to some who hear them" could constitute a "breach of the peace."
Cases invalidating laws requiring members of a "subversive
organization" to take a loyalty oath, Baggett v. Bullitt, 377 U. S. 360 (1964), or register with the government, Domorowski v.
Pfister, 380 U. S. 479 (1965), can be explained on the basis that the laws involved,
unlike § 263.15, defined no central core of constitutionally
regulable conduct; the entire scope of the laws was subject to the
uncertainties and vagaries of prosecutorial discretion. See
also Bigelow v. Virginia, 421 U. S. 809 , 421 U. S. 817 (1975) ("the facts of this case well illustrate `the statute's
potential for sweeping and improper applications'") (citation
omitted); NAACP v. Button, 371 U.
S. 415 , 371 U. S. 433 (1963) ("We read the decree of the Virginia Supreme Court of
Appeals . . . as proscribing any arrangement by which prospective
litigants are advised to seek the assistance of particular
attorneys"); Thornhill v. Alabama, 310 U. S.
88 , 310 U. S. 97 (1940) (the statute "does not aim specifically at evils within the
allowable area of state control but, on the contrary, sweeps within
its ambit other activities that in ordinary circumstances
constitute an exercise of freedom of speech or of the
press"). [ Footnote 27 ]

															"A substantial overbreadth rule is implicit in the chilling
effect rationale. . . . [T]he presumption must be that only
substantially overbroad laws set up the kind and degree of chill
that is judicially cognizable."

															Moreover,

															"[w]ithout a substantial overbreadth limitation, review for
overbreadth would be draconian indeed. It is difficult to think of
a law that is utterly devoid of potential for unconstitutionality
in some conceivable application."

															Note, 83 Harv.L.Rev. supra, n 25, at 859, and n. 61.

															[ Footnote 28 ]

															There is no argument that the films sold by respondent do not
fall squarely within the category of activity we have defined as
unprotected. Therefore, no independent examination of the material
is necessary to assure ourselves that the judgment here "does not
constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 285 (1964).

															JUSTICE O'CONNOR, concurring.

															Although I join the Court's opinion, I write separately to
stress that the Court does not hold that New York must except
"material with serious literary, scientific, or educational value," ante at 458 U. S. 766 ,
from its statute. The Court merely holds that, even if the First
Amendment shelters such material, New York's current statute is not
sufficiently overbroad to support respondent's facial attack. The
compelling interests identified in today's opinion, see
ante at 458 U. S.
756 -764, suggest that the Constitution might, in fact,
permit New York to ban knowing distribution of works depicting
minors engaged in explicit sexual conduct, regardless of the social
value of the depictions. For example, a 12-year-old child
photographed while Page 458 U. S. 775 masturbating surely suffers the same psychological harm whether
the community labels the photograph "edifying" or "tasteless." The
audience's appreciation of the depiction is simply irrelevant to
New York's asserted interest in protecting children from
psychological, emotional, and mental harm.

															An exception for depictions of serious social value, moreover,
would actually increase opportunities for the content-based
censorship disfavored by the First Amendment. As drafted, New
York's statute does not attempt to suppress the communication of
particular ideas. The statute permits discussion of child
sexuality, forbidding only attempts to render the "portrayal[s]
somewhat more realistic' by utilizing or photographing
children." Ante at 458 U. S. 763 .
Thus, the statute attempts to protect minors from abuse without
attempting to restrict the expression of ideas by those who might
use children as live models. On the other hand, it is quite possible that New York's statute
is overbroad because it bans depictions that do not actually
threaten the harms identified by the Court. For example, clinical
pictures of adolescent sexuality, such as those that might appear
in medical textbooks, might not involve the type of sexual
exploitation and abuse targeted by New York's statute. Nor might
such depictions feed the poisonous "kiddie porn" market that New
York and other States have attempted to regulate. Similarly,
pictures of children engaged in rites widely approved by their
cultures, such as those that might appear in issues of the National
Geographic, might not trigger the compelling interests identified
by the Court. It is not necessary to address these possibilities
further today, however, because this potential overbreadth is not
sufficiently substantial to warrant facial invalidation of New
York's statute.

															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 Page 458 U. S. 776 Ginsburg v. New York, 390 U. S. 629 (1968), the State has a special interest in protecting the
wellbeing of its youth. Id. at 390 U. S.
638 -641. See also Globe Newspaper Co. v. Superior
Court, 457 U. S. 596 , 457 U. S. 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 390 U. S. 637 , 390 U. S. 638 ,
n. 6, 390 U. S.
642 -643, n. 10. See also Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 195 (1964) (opinion of BRENNAN, J.). I also agree with the Court that
the "tiny fraction," ante at 458 U. S. 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 , 413 U. S. 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 , 315 U. S.
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 458 U. S. 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 458 U. S. 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 Page 458 U. S. 777 profile, clandestine industry" that, according to the Court,
produces purely pornographic materials. See ante at 458 U. S. 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 458 U. S.
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 , 413 U. S. 73 (1973) (BRENNAN, J., dissenting). With this understanding, I concur
in the Court's judgment in this case.

															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. [ Footnote 2/1 ] 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 Page 458 U. S. 778 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. [ Footnote 2/2 ]

															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, [ Footnote 2/3 ] the Court
makes the Page 458 U. S. 779 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 458 U. S. 773 .
Even assuming that the Court's empirical analysis is sound,
[ Footnote 2/4 ] 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 Page 458 U. S. 780 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 Page 458 U. S. 781 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. [ Footnote 2/5 ] 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 458 U. S.
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.
[ Footnote 2/6 ]

															Because I have no difficulty with the statute's application in
this case, I concur in the Court's judgment.

															[ Footnote 2/1 ]

															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.

															[ Footnote 2/2 ] See Burch v. Louisiana, 441 U.
S. 130 , 441 U. S. 139 (STEVENS, J., concurring); Pinkus v. United States, 436 U. S. 293 , 436 U. S. 305 (STEVENS, J., concurring); Ballew v. Georgia, 435 U.
S. 223 , 435 U. S. 245 (STEVENS, J., concurring); Smith v. United States, 431 U. S. 291 , 431 U. S.
311 -321 (STEVENS, J., dissenting); Marks v. United
States, 430 U. S. 188 , 430 U. S. 198 (STEVENS, J., concurring in part and dissenting in part); see
also Schad v. Borough of Mount Ephraim, 452 U. S.
61 , 452 U. S. 84 (STEVENS, J., concurring in judgment); FCC v. Pacifica
Foundation, 438 U. S. 726 , 438 U. S. 750 (opinion of STEVENS, J.).

															[ Footnote 2/3 ]

															"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 458 U. S.
764 .

															[ Footnote 2/4 ]

															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).

															[ Footnote 2/5 ] See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S.
at 452 U. S. 80 , 452 U. S. 83 (STEVENS, J., concurring in judgment); Consolidated Edison Co.
v. Public Service Comm'n, 447 U. S. 530 , 447 U. S.
544 -548 (STEVENS, J., concurring in judgment); FCC
v. Pacifica Foundation, 438 U.S. at 438 U. S.
744 -748 (opinion of STEVENS, J.); Carey v.
Population Services International, 431 U.
S. 678 , 431 U. S.
716 -717 (STEVENS, J., concurring in part and concurring
in judgment); Smith v. United States, 431 U.S. at 431 U. S.
317 -319 (STEVENS, J., dissenting); Young v. American
Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 66 -71
(opinion of STEVENS,J.).

															[ Footnote 2/6 ] See FCC v. Pacifica Foundation, supra, at 438 U. S.
742 -743 (opinion of STEVENS, J.); Young v. American
Mini Theatres, Inc., supra, at 427 U. S. 59 -61; see also Metromedia, Inc. v. City of San Diego, 453 U. S. 490 , 453 U. S.
544 -548 (STEVENS, J., dissenting in part); Schad v.
Borough of Mount Ephraim, supra, at 452 U. S. 85 (STEVENS, J., concurring in judgment).

Summary: In New York v. Ferber (1982), the U.S. Supreme Court upheld a New York statute prohibiting the distribution of material depicting children engaged in sexual conduct, even if the material was not obscene. The Court recognized the harmful nature of child pornography and granted states greater leeway in regulating it. The Court balanced First Amendment rights with the welfare of children, concluding that the statute's focus on the distribution of such material was permissible due to the severe harm inflicted on children during its production. This decision established child pornography as a category of speech unprotected by the First Amendment.