Parties: New York v. Ferber
Date: 1982-07-02
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Paragraph: 31 - N70* "[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, 427 U.S., at 66, 96 S.Ct., at 2450. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Leaving aside the special considerations when public officials are the target, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 95 L.Ed. 1412 (1964), a libelous publication is not protected by the Constitution. Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (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 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 N71* as without the protection of the First Amendment.
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Paragraph: 17 - the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression:
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Paragraph: 22 - 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.
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Paragraph: 50 - 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."
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Paragraph: 19 - Embracing this judgment, the Court squarely held in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that N139* "obscenity is not within the area of constitutionally protected speech or press." Id., at 485, 77 S.Ct., at 1309. The Court recognized that N140* "rejection of obscenity as utterly without redeeming social importance" was implicit in the history of the First Amendment:
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Paragraph: 31 - protected by the Constitution. Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (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 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, N141* 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.
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