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Regulation of Computer-generated virtual Child Pornography under American and French Jurisprudence: One Country’s Protected “Speech” is another’s Harmful Smut.
Unformatted Document Text:  made it a criminal offense to sell pornography to minors. In New York v. Ferber, 33 a 1982 case, the Supreme Court of the United States handed down a landmark decision that stills serves as precedent in many child pornography cases. Ferber, proprietor of a Manhattan bookstore specializing in sexual products, was charged with violating a New York statute that prohibits persons from knowingly promoting sexual performances by children under the age of 16 through distributing material depicting the criminalized performance. Ferber was convicted and the Appellate Division of the New York Supreme Court affirmed the conviction. The New York Court of Appeals reversed the conviction. New York appealed to the Supreme Court of the United States. The issue before the court was whether the New York statute violated the First Amendment. The court held that it did not. The Court said that under the First Amendment, states could regulate pornographic depictions of children because the use of children as subjects in pornographic material has adverse psychological, emotional and mental health implications for the children. Furthermore, The standard of Miller v. California, 34 which is used to determine what is legally obscene, is not a satisfactory standard for the problem of child pornography. Additionally, the advertising and selling of child pornography is an economic motive for an activity that is illegal throughout the United States. The Court thus classified child pornography as material that is not protected by the First Amendment even though the material may not be obscene. The Court’s decision in Ferber had the two fold aim of 1) protecting the physical 33 458 U.S. 747 (1982). 34 See Miller v. California, 413 U.S. 15 (1973) (The trier of fact must determine whether the work, taken as a whole, appeals to the prurient interest [in sex]; and is patently offensive, and contains no serious literary, artistic, political, or scientific value).

Authors: Eko, Lyombe.
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made it a criminal offense to sell pornography to minors. In New York v. Ferber,
33
a 1982 case, the Supreme Court of the United States handed down a landmark
decision that stills serves as precedent in many child pornography cases. Ferber,
proprietor of a Manhattan bookstore specializing in sexual products, was charged
with violating a New York statute that prohibits persons from knowingly promoting
sexual performances by children under the age of 16 through distributing material
depicting the criminalized performance. Ferber was convicted and the Appellate
Division of the New York Supreme Court affirmed the conviction. The New York
Court of Appeals reversed the conviction. New York appealed to the Supreme
Court of the United States. The issue before the court was whether the New York
statute violated the First Amendment. The court held that it did not. The Court
said that under the First Amendment, states could regulate pornographic
depictions of children because the use of children as subjects in pornographic
material has adverse psychological, emotional and mental health implications for
the children. Furthermore, The standard of Miller v. California,
34
which is used to
determine what is legally obscene, is not a satisfactory standard for the problem
of child pornography. Additionally, the advertising and selling of child
pornography is an economic motive for an activity that is illegal throughout the
United States. The Court thus classified child pornography as material that is not
protected by the First Amendment even though the material may not be obscene.
The Court’s decision in Ferber had the two fold aim of 1) protecting the physical
33
458 U.S. 747 (1982).
34
See Miller v. California, 413 U.S. 15 (1973) (The trier of fact must determine whether the work, taken as
a whole, appeals to the prurient interest [in sex]; and is patently offensive, and contains no serious literary,
artistic, political, or scientific value).


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