new york ferber argued april decided july new york statute prohibits persons knowingly promoting sexual performance child age distributing material depicts performance statute defines sexual performance performance includes sexual conduct child sexual conduct turn defined actual simulated sexual intercourse deviate sexual intercourse sexual bestiality masturbation abuse lewd exhibition genitals respondent bookstore proprietor convicted statute selling films depicting young boys masturbating appellate division new york affirmed new york appeals reversed holding statute violated first amendment explicit inclusion obscenity standard companion statute banning knowing dissemination similarly defined material statute question construed include obscenity standard therefore prohibit promotion materials traditionally entitled protection first amendment held applied respondent others distribute similar material statute question violate first amendment applied fourteenth amendment pp entitled greater leeway regulation pornographic depictions children following reasons legislative judgment use children subjects pornographic materials harmful physiological emotional mental health child easily passes muster first amendment standard miller california determining legally obscene satisfactory solution child pornography problem advertising selling child pornography provide economic motive thus integral part production materials activity illegal throughout nation value permitting live performances photographic reproductions children engaged lewd exhibitions exceedingly modest de minimis recognizing classifying child pornography category material outside first amendment protection incompatible decisions dealing speech unprotected definable class material covered new york statute bears heavily pervasively welfare children engaged production balance competing interests clearly struck permissible consider materials without first amendment protection pp new york statute describes category material production distribution entitled first amendment protection accordingly nothing unconstitutionally statute state barred first amendment prohibiting distribution unprotected materials produced outside state pp new york statute unconstitutionally overbroad forbidding distribution material serious literary scientific educational value substantial overbreath rule broadrick oklahoma applies paradigmatic case state statute whose legitimate reach dwarfs arguably impermissible applications hatever overbreadth may exist cured analysis fact situations statute sanctions assertedly may applied broadrick oklahoma supra pp white delivered opinion burger powell rehnquist joined filed concurring opinion post brennan filed opinion concurring judgment marshall joined post blackmun concurred result stevens filed opinion concurring judgment post robert pitler argued cause petitioner briefs mark dwyer herald price fahringer argued cause respondent brief paul cambria briefs amici curiae urging reversal filed edmund burns gregory loken william cahill covenant house john walsh morality media michael bamberger filed brief american booksellers association et amici curiae urging affirmance bruce taylor filed brief charles keating et amici curiae justice white delivered opinion issue case constitutionality new york criminal statute prohibits persons knowingly promoting sexual performances children age distributing material depicts performances recent years exploitive use children production pornography become serious national problem federal government sought combat problem statutes specifically directed production child pornography least half statutes require materials produced legally obscene congress also passed legislation prohibiting distribution materials prohibit distribution material depicting children engaged sexual conduct without requiring material legally obscene new york one new york legislature enacted article penal law penal law art mckinney section criminalizes class felony use child sexual performance person guilty use child sexual performance knowing character content thereof employs authorizes induces child less sixteen years age engage sexual performance parent legal guardian custodian child consents participation child sexual performance sexual conduct means actual simulated sexual intercourse deviate sexual intercourse sexual bestiality masturbation abuse lewd exhibition genitals issue case defining class felony person guilty promoting sexual performance child knowing character content thereof produces directs promotes performance includes sexual conduct child less sixteen years age promote means procure manufacture issue sell give provide lend mail deliver transfer transmute publish distribute circulate disseminate present exhibit advertise offer agree case arose paul ferber proprietor manhattan bookstore specializing sexually oriented products sold two films undercover police officer films devoted almost exclusively depicting young boys masturbating ferber indicted two counts violating two counts violating two new york laws controlling dissemination child pornography jury trial ferber acquitted two counts promoting obscene sexual performance found guilty two counts require proof films obscene ferber convictions affirmed without opinion appellate division new york state app div new york appeals reversed holding violated first amendment began noting light explicit inclusion obscenity standard construed include standard therefore statute prohibit promotion materials traditionally entitled constitutional protection government interference first amendment although recognized state legitimate interest protecting welfare minors noted interest may transcend first amendment concerns nevertheless found two fatal defects new york statute section underinclusive discriminated visual portrayals children engaged sexual activity also prohibiting distribution films dangerous activity also overbroad prohibited distribution materials produced outside state well materials medical books educational sources deal adolescent sex realistic nonobscene manner two judges dissented granted state petition certiorari presenting single question prevent abuse children made engage sexual conduct commercial purposes new york state legislature consistent first amendment prohibit dissemination material shows children engaged sexual conduct regardless whether material obscene ii appeals proceeded assumption standard obscenity incorporated follows guidelines enunciated miller california constitutes appropriate line dividing protected unprotected expression measure regulation directed child pornography premise nonobscene adolescent sex singled special treatment found strikingly underinclusive moreover assumption constitutionally permissible regulation pornography extensive respect distribution material depicting children may also led conclude narrowing construction unavailable appeals assumption unreasonable light decisions case however constitutes first examination statute directed limited depictions sexual activity involving children believe inquiry begin question whether state somewhat freedom proscribing works portray sexual acts lewd exhibitions genitalia children chaplinsky new hampshire laid foundation excision obscenity realm constitutionally protected expression certain narrowly limited classes speech prevention punishment never thought raise constitutional problem include lewd obscene well observed utterances essential part exposition ideas slight social value step truth benefit may derived clearly outweighed social interest order morality footnotes omitted roth followed years struggled intractable obscenity problem interstate circuit dallas opinion harlan see redrup new york despite considerable vacillation proper definition obscenity majority members remained firm position legitimate interest prohibiting dissemination exhibition obscene material mode dissemination carries significant danger offending sensibilities unwilling recipients exposure juveniles miller california supra omitted stanley georgia ginsberg new york interstate circuit dallas supra redrup new york supra jacobellis ohio throughout period recognized inherent dangers undertaking regulate form expression miller california supra consequently difficulty assure statutes designed regulate obscene materials sufficiently defined prohibited also devise substantive limits fell within permissible scope regulation miller california supra majority agreed state offense must also limited works taken whole appeal prurient interest sex portray sexual conduct patently offensive way taken whole serious literary artistic political scientific value past decade adhered guidelines expressed miller subsequently followed regulatory schemes miller standard like predecessors accommodation state interests protecting sensibilities unwilling recipients exposure pornographic material dangers censorship inherent unabashedly laws like obscenity statutes laws directed dissemination child pornography run risk suppressing protected expression allowing hand censor become unduly heavy following reasons however persuaded entitled greater leeway regulation pornographic depictions children first evident beyond need elaboration state interest safeguarding physical psychological minor compelling globe newspaper superior democratic society rests continuance upon healthy growth young people full maturity citizens prince massachusetts accordingly sustained legislation aimed protecting physical emotional youth even laws operated sensitive area constitutionally protected rights prince massachusetts supra held statute prohibiting use child distribute literature street valid notwithstanding statute effect first amendment activity ginsberg new york supra sustained new york law protecting children exposure nonobscene literature recently held government interest wellbeing youth justified special treatment indecent broadcasting received adults well children fcc pacifica foundation prevention sexual exploitation abuse children constitutes government objective surpassing importance legislative findings accompanying passage new york laws reflect concern proliferation exploitation children subjects sexual performances care children sacred trust abused seek profit commercial network based upon exploitation children public policy state demands protection children exploitation sexual performances laws ch second distribution photographs films depicting sexual activity juveniles intrinsically related sexual abuse children least two ways first materials produced permanent record children participation harm child exacerbated circulation second distribution network child pornography must closed production material requires sexual exploitation children effectively controlled indeed serious contention legislature unjustified believing difficult impossible halt exploitation children pursuing produce photographs movies production pornographic materials clandestine industry need market resulting products requires visible apparatus distribution expeditious practical method law enforcement may dry market material imposing severe criminal penalties persons selling advertising otherwise promoting product congress concluded restraints distribution pornographic materials required order effectively combat problem body literature testimony support legislative conclusions cf darby upholding federal restrictions sale goods manufactured violation fair labor standards act respondent contend state unjustified pursuing distribute child pornography rather argues enough state prohibit distribution materials legally obscene miller test may find approach properly accommodates interests follow first amendment prohibits state going miller standard like general definitions may banned obscene reflect state particular compelling interest prosecuting promote sexual exploitation children thus question miller test whether work taken whole appeals prurient interest average person bears connection issue whether child physically psychologically harmed production work similarly sexually explicit depiction need patently offensive order required sexual exploitation child production addition work taken whole contains serious literary artistic political scientific value may nevertheless embody hardest core child pornography irrelevant child abused whether material literary artistic political social value memorandum assemblyman lasher support therefore conclude miller standard satisfactory solution child pornography problem third advertising selling child pornography provide economic motive thus integral part production materials activity illegal throughout nation rarely suggested constitutional freedom speech press extends immunity speech writing used integral part conduct violation valid criminal statute giboney empire storage ice note statutes outlawing employment children films photographs fully effective constitutionality laws questioned first amendment implications greater presented laws distribution enforceable production laws leave child pornography marketed fourth value permitting live performances photographic reproductions children engaged lewd sexual conduct exceedingly modest de minimis consider unlikely visual depictions children performing sexual acts lewdly exhibiting genitals often constitute important necessary part literary performance scientific educational work state judge case observed necessary literary artistic value person statutory age perhaps looked younger utilized simulation outside prohibition statute provide another alternative question censoring particular literary theme portrayal sexual activity first amendment interest limited rendering portrayal somewhat realistic utilizing photographing children fifth recognizing classifying child pornography category material outside protection first amendment incompatible earlier decisions question whether speech protected first amendment often depends content speech young american mini theatres opinion stevens joined burger white rehnquist see also fcc pacifica foundation opinion stevens joined burger rehnquist content utterance determines whether protected epithet unprotected fighting comment young american mini theatres supra see chaplinsky new hampshire leaving aside special considerations public officials target new york times sullivan libelous publication protected constitution beauharnais illinois thus rare classification speech accepted may appropriately generalized within confines given classification evil restricted overwhelmingly outweighs expressive interests stake process adjudication required definable class material covered bears heavily pervasively welfare children engaged production think balance competing interests clearly struck permissible consider materials without protection first amendment course limits category child pornography like obscenity unprotected first amendment legislation sensitive area conduct prohibited must adequately defined applicable state law written authoritatively construed nature harm combated requires state offense limited works visually depict sexual conduct children specified age category sexual conduct proscribed must also suitably limited described test child pornography separate obscenity standard enunciated miller may compared purpose clarity miller formulation adjusted following respects trier fact need find material appeals prurient interest average person required sexual conduct portrayed done patently offensive manner material issue need considered whole note distribution descriptions depictions sexual conduct otherwise obscene involve live performance photographic visual reproduction live performances retains first amendment protection obscenity laws criminal responsibility may imposed without element scienter part defendant smith california hamling section prohibition incorporates definition sexual conduct comports principles forbidden acts depicted listed sufficient precision represent kind conduct theme work render legally obscene actual simulated sexual intercourse deviate sexual intercourse sexual bestiality masturbation abuse lewd exhibition genitals term lewd exhibition genitals unknown area indeed given miller example permissible regulation performance defined include live visual depictions play motion picture photograph dance visual representation exhibited audience section expressly includes scienter requirement hold sufficiently describes category material production distribution entitled first amendment protection therefore clear nothing unconstitutionally underinclusive statute singles category material proscription also follows state barred first amendment prohibiting distribution unprotected materials produced outside state iii remains address claim new york statute unconstitutionally overbroad forbid distribution material serious literary scientific educational value material threaten harms sought combated state respondent prevailed ground issue turn new york appeals recognized overbreadth scrutiny limited respect regulation broadrick oklahoma apply test enunciated broadrick challenged statute view directed pure speech went find fatally overbroad statute prohibit showing play movie child portrays defined sexual act real simulated nonobscene manner also prohibit sale showing distributing medical educational materials containing photographs acts indeed terms statute prohibit oppose portrayals providing illustrations oppose construction state gives state statute matter subject review wainwright stone gooding wilson final arbiter whether federal constitution necessitated invalidation state law process review may correct erroneous applications constitution err side overly broad reading doctrines precedents well decisions giving constitution little shrift state free avoid proper facial attack federal constitutional grounds bigelow virginia token compelled entertain overbreadth attack required constitution traditional rule person statute may constitutionally applied may challenge statute ground may conceivably applied unconstitutionally others situations broadrick oklahoma supra raines carmichael southern coal coke yazoo jackson vinegar broadrick recognized rule reflects two cardinal principles constitutional order personal nature constitutional rights mcgowan maryland prudential limitations constitutional adjudication raines supra noted incontrovertible proposition indeed undesirable consider every conceivable situation might possibly arise application complex comprehensive legislation quoting barrows jackson focusing factual situation us similar cases necessary development constitutional rule face legal problems data relevant adequate informed judgment practice also fulfills valuable institutional purpose allows state courts opportunity construe law avoid constitutional infirmities come known first amendment overbreadth doctrine one exceptions principle must justified weighty countervailing policies raines supra doctrine predicated sensitive nature protected expression persons whose expression constitutionally protected may well refrain exercising rights fear criminal sanctions statute susceptible application protected expression village schaumburg citizens better environment gooding wilson supra reason allowed persons attack overly broad statutes even though conduct person making attack clearly unprotected proscribed law drawn requisite specificity dombrowski pfister thornhill alabama raines supra gooding wilson supra scope first amendment overbreadth doctrine like exceptions established principles must carefully tied circumstances facial invalidation statute truly warranted effects striking statute face request one whose conduct may punished despite first amendment recognized overbreadth doctrine strong medicine employed hesitation last resort broadrick consequence insisted overbreadth involved substantial statute involved invalidated face broadrick explained basis requirement plain import cases least facial overbreadth adjudication exception traditional rules practice function limited one outset attenuates otherwise unprotected behavior forbids state sanction moves pure speech toward conduct conduct even expressive falls within scope otherwise valid criminal laws reflect legitimate state interests maintaining comprehensive controls harmful constitutionally unprotected conduct although laws broadly worded may deter protected speech unknown extent comes point effect best prediction confidence justify invalidating statute face prohibiting state enforcing statute conduct admittedly within power proscribe cf alderman broadrick examined regulation involving restrictions political campaign activity area considered pure speech thus unnecessary consider proper overbreadth test law arguably reaches traditional forms expression books films intimated broadrick requirement substantial overbreadth extended least cases involving conduct plus speech case poses question squarely convinces us rationale broadrick sound applied present context involving harmful employment children make sexually explicit materials distribution premise law invalidated overbreadth unless reaches substantial number impermissible applications hardly novel occasions involving facial invalidation stressed embracing sweep statute protected expression indeed justice brennan observed dissenting opinion broadrick never held statute held invalid face merely possible conceive single impermissible application sense requirement substantial overbreadth already implicit doctrine requirement substantial overbreadth may justifiably applied statutory challenges arise defense criminal prosecution well civil enforcement actions seeking declaratory judgment cf parker levy indeed practice confronted ordinary criminal laws sought applied protected conduct invalidate law toto rather reverse particular conviction cantwell connecticut edwards south carolina recognize however penalty imposed relevant determining whether demonstrable overbreadth substantial simply hold fact criminal prohibition involved obviate need inquiry priori warrant finding substantial overbreadth applying principles hold substantially overbroad consider paradigmatic case state statute whose legitimate reach dwarfs arguably impermissible applications new york held may constitutionally prohibit dissemination material specified reach statute directed hard core child pornography appeals understandably concerned protected expression ranging medical textbooks pictorials national geographic fall prey statute often ever may necessary employ children engage conduct clearly within reach order produce educational medical artistic works known certainty yet seriously doubt suggested arguably impermissible applications statute amount tiny fraction materials within statute reach assume new york courts widen possibly invalid reach statute giving expansive construction proscription lewd exhibition genitals circumstances substantially overbroad whatever overbreadth may exist cured analysis fact situations sanctions assertedly may applied broadrick oklahoma iv substantially overbroad unnecessary consider application material depict sexual conduct type new york may restrict consistent first amendment applied paul ferber others distribute similar material statute violate first amendment applied fourteenth judgment new york appeals reversed case remanded proceedings inconsistent opinion ordered footnotes addition new york prohibited dissemination material depicting children engaged sexual conduct regardless whether material obscene rev stat ann supp rev stat supp del code tit stat haw rev stat supp rev stat supp la rev stat ann west supp mass laws ch west supp comp laws ann miss code ann supp mont code ann stat ann west okla tit stat tit purdon laws tex penal code ann utah code ann supp code supp stat fifteen prohibit dissemination material obscene code supp ark stat ann supp cal penal code ann west supp general obscenity statute rev ch ind code rev stat tit supp stat neb rev stat rev stat ann ii supp cent code general obscenity statute ohio rev code ann rev stat codified laws code ann supp rev code federal statute also prohibits dissemination material obscene supp iv two prohibit dissemination material obscene minors stat code twelve prohibit use minors production material alaska stat ann code idaho code iowa code stat ann md ann code art supp mo rev stat rev stat stat ann supp stat code supp wyo stat class felonies carry maximum punishment imprisonment seven years individuals corporations fine penal law mckinney respondent ferber sentenced days prison state judge rejected ferber first amendment attack two sections denying motion dismiss indictment misc penal law mckinney people illardo hamling jenkins georgia ward illinois marks pinkus district columbia either legislatively adopted judicially incorporated miller test obscenity code supp rev stat ann ark stat ann supp rev stat supp del code tit lakin code haw rev stat supp idaho code iowa code child pornography covered ind code stat ann rev stat la rev stat ann west supp ebert maryland state bd censors md app mass laws ch west supp people neumayer state welke mo rev stat neb rev stat rev stat rev stat ann iv supp stat ann west penal law mckinney stat cent code state burgun ohio mccrary state crim app rev stat stat tit purdon supp laws code supp codified laws code ann supp tex penal code ann utah code ann code wash ch four continue follow test approved memoirs massachusetts cal penal code ann west supp stat stat rev ch five regulate distribution pornographic material minors rev stat tit supp mont code ann stat ann supp stat tit code three state obscenity laws fall categories miss code ann declared invalid abc interstate theatres state miss stat declared invalid state princess cinema milwaukee wyo stat alaska current state obscenity law number employ different obscenity standard respect material distributed children see stat addition legislature found sale movies magazines photographs depicting sexual conduct children abhorrent fabric society urge law enforcement officers aggressively seek prosecute peddlers filth vigorously applying sanctions contained act laws ch use children subjects pornographic materials harmful children society whole found sexually exploited children unable develop healthy affectionate relationships later life sexual dysfunctions tendency become sexual abusers adults schoettle child exploitation study child pornography acad child psychiatry hereafter cited child exploitation schoettle treatment child pornography patient psychiatry child prostitution child pornography medical legal societal aspects commercial exploitation children reprinted dept health human services sexual abuse children selected readings hereafter cited commercial exploitation sexually exploited children behavior drug alcohol abuse prostitution see generally burgess holmstrom pressure sex secrecy burgess groth holmstrom sgroi sexual assault children adolescents de francis protecting child victim sex crimes committed adults ellerstein canavan sexual abuse boys diseases children finch adult seduction child effects child medical aspects human sexuality mar groth sexual trauma life histories rapists child molesters victimology sexual molestation adults often involved production child sexual performances sexual exploitation children report illinois general assembly illinois legislative investigating commission performances recorded distributed child privacy interests also invaded see infra one authority explained ornography poses even greater threat child victim sexual abuse prostitution child actions reduced recording pornography may haunt future years long original misdeed took place child posed camera must go life knowing recording circulating within mass distribution system child pornography shouvlin preventing sexual exploitation children model act wake forest rev see also child exploitation fear exposure tension keeping act secret seem profound emotional repercussions note protection children use pornography toward constitutional enforceable legislation law reform hereafter cited use pornography interview child psychiatrist victim knowledge publication visual material increases emotional psychic harm suffered child thus distribution material violates individual interest avoiding disclosure personal matters whalen roe respondent undermine force privacy interests involved looking cox broadcasting cohn smith daily mail publishing cases protecting right newspapers publish respectively identity rape victim youth charged juvenile offender cases stand proposition newspaper lawfully obtains truthful information matter public significance state officials may constitutionally punish publication information absent need highest order see sexual exploitation children hearings subcommittee crime house judiciary committee statement charles rembar impossible prosecutorial job try get acts statement frank osanka professor social justice sociology careful take comfort existence statutes books connection use children pornography usually witnesses acts producing pornography statement investigator lloyd martin los angeles police department producers child pornography use false names making difficult tracing material back distributor see also tribe american constitutional law note child pornography new role obscenity doctrine law forum use pornography passage criminal laws aimed producers without similar regulation distributors arguably shift production process underground addition legal obscenity miller function contemporary community standards neither realistic constitutionally sound read first amendment requiring people maine mississippi accept public depiction conduct found tolerable las vegas new york city equally unrealistic equate community toleration sexually oriented material permissible scope legislation aimed protecting children sexual exploitation furthermore number rely stricter obscenity tests see supra successful prosecution child pornography may even difficult one state committee studying problem declared act selling materials guaranteeing additional abuse children texas house select committee child pornography related causes control see also commercial exploitation printed materials isolated removed process involved developing giboney unanimous held labor unions restrained picketing firm support secondary boycott state validly outlawed pittsburgh press pittsburgh human relations allowed injunction newspaper furtherance illegal sex discrimination placing job advertisements columns stated first amendment interest might served advertising ordinary commercial proposal might arguably outweigh governmental interest supporting regulation altogether absent commercial activity illegal restriction advertising incidental valid limitation economic activity connection note supp iv making federal offense anyone use children age production pornographic materials embraces sexually explicit conduct without imposing obscenity test addition half state laws imposing criminal liability producer require visual material legally obscene use pornography misc merely hypothetical possibility see brief petitioner examples cited therein sixteen define child person age four define child years old federal law including new york define child illinois nebraska define child person age appears prepubescent rev ch neb rev stat indiana defines child one appears ind code kentucky provides two age classifications varies punishment according victim age rev stat supp see use pornography collecting statutes erznoznik city jacksonville relied upon appeals struck law theaters showing nude scenes movies seen public place since nudity without protected expression proceeded consider underinclusiveness ordinance jacksonville ordinance impermissibly singled movies nudity special treatment failing regulate protected speech created alleged risk traffic today hold child pornography defined unprotected speech subject regulation hence underinclusive unconstitutional state precisely often impossible determine material produced senate report accompanying federal child pornography legislation stressed quite common photographs films made sent foreign countries reproduced returned country order give impression foreign origin addition limited distribution laws material produced within borders maintenance market leaves open financial conduit production material funded materially increases risk local children injured jasen dissenting addition prudential restraints traditional rule grounded art iii limits jurisdiction federal courts actual cases controversies case federal courts jurisdiction pronounce statute either state void irreconcilable constitution except called upon adjudge legal rights litigants actual controversies exercise jurisdiction bound two rules rigidly adhered one never anticipate question constitutional law advance necessity deciding never formulate rule constitutional law broader required precise facts applied liverpool new york philadelphia commissioners emigration raines overbreadth challenges one type facial attack person whose activity may constitutionally regulated nevertheless may argue statute convicted regulated invalid face see terminiello city chicago see generally monaghan overbreadth rev bickel least dangerous branch frankfurter hart business october term harv rev federal dealing federal statute challenged overbroad course construe statute avoid constitutional problems statute subject limiting construction crowell benson accord haynes dictum schneider smith rumely ashwander tva brandeis concurring furthermore federal statute subject narrowing construction impermissibly overbroad nevertheless stricken face severable unconstitutional portion invalidated photographs state also free deal state statute way invalid reach law cured longer reason proscribing statute application unprotected conduct course dealing state statute direct review decision construed statute construction binding us parker levy repeatedly expressed reluctance strike statute face substantial number situations might validly applied thus even marginal applications statute infringe first amendment values facial invalidation inappropriate remainder statute covers whole range easily identifiable constitutionally proscribable conduct csc letter carriers see bogen first amendment ancillary doctrines md rev note first amendment overbreadth doctrine harv rev gooding wilson invalidation georgia statute making misdemeanor use opprobrious words abusive language tending cause breach peace followed state judicial decisions indicating merely speak words offensive hear constitute breach peace cases invalidating laws requiring members subversive organization take loyalty oath baggett bullitt register government dombrowski pfister explained basis laws involved unlike defined central core constitutionally regulable conduct entire scope laws subject uncertainties vagaries prosecutorial discretion see also bigelow virginia facts case well illustrate statute potential sweeping improper applications citation omitted naacp button read decree virginia appeals proscribing arrangement prospective litigants advised seek assistance particular attorneys thornhill alabama statute aim specifically evils within allowable area state control contrary sweeps within ambit activities ordinary circumstances constitute exercise freedom speech press substantial overbreadth rule implicit chilling effect rationale presumption must substantially overbroad laws set kind degree chill judicially cognizable moreover ithout substantial overbreadth limitation review overbreadth draconian indeed difficult think law utterly devoid potential unconstitutionality conceivable application note harv supra argument films sold respondent fall squarely within category activity defined unprotected therefore independent examination material necessary assure judgment constitute forbidden intrusion field free expression new york times sullivan justice concurring although join opinion write separately stress hold new york must except material serious literary scientific educational value ante statute merely holds even first amendment shelters material new york current statute sufficiently overbroad support respondent facial attack compelling interests identified today opinion see ante suggest constitution might fact permit new york ban knowing distribution works depicting minors engaged explicit sexual conduct regardless social value depictions example child photographed masturbating surely suffers psychological harm whether community labels photograph edifying tasteless audience appreciation depiction simply irrelevant new york asserted interest protecting children psychological emotional mental harm exception depictions serious social value moreover actually increase opportunities censorship disfavored first amendment drafted new york statute attempt suppress communication particular ideas statute permits discussion child sexuality forbidding attempts render portrayal somewhat realistic utilizing photographing children ante thus statute attempts protect minors abuse without attempting restrict expression ideas might use children live models hand quite possible new york statute overbroad bans depictions actually threaten harms identified example clinical pictures adolescent sexuality might appear medical textbooks might involve type sexual exploitation abuse targeted new york statute might depictions feed poisonous kiddie porn market new york attempted regulate similarly pictures children engaged rites widely approved cultures might appear issues national geographic might trigger compelling interests identified necessary address possibilities today however potential overbreadth sufficiently substantial warrant facial invalidation new york statute justice brennan justice marshall joins concurring judgment agree much said opinion made clear opinion delivered ginsburg new york state special interest protecting youth see also globe newspaper superior special compelling interest particular vulnerability children afford state leeway regulate pornographic material promotion harmful children even though state leeway seeks protect consenting adults exposure material ginsburg new york supra see also jacobellis ohio opinion brennan also agree tiny fraction ante material serious artistic scientific educational value conceivably fall within reach statute insufficient justify striking statute grounds overbreadth see broadrick oklahoma brennan dissenting view application similar statute depictions children serious literary artistic scientific medical value violate first amendment recognizes limited classes speech suppression raise serious first amendment concerns two attributes exceedingly slight social value state compelling interest regulation see chaplinsky new hampshire first amendment value depictions children serious contributions art literature science definition simply de minimis see ante time state interest suppression materials likely far less compelling assumption harm child resulting permanent record circulation child participation ante lacks much force depiction serious contribution art science production materials serious value clandestine industry according produces purely pornographic materials see ante short inconceivable depiction child serious contribution world art literature science deemed material outside protection first amendment see ante course adhere view absence exposure particular harm juveniles unconsenting adults state lacks power suppress sexually oriented materials see paris adult theatre slaton brennan dissenting understanding concur judgment case justice stevens concurring judgment two propositions seem perfectly clear first specific conduct gave rise criminal prosecution protected federal constitution second state statute respondent violated prohibits conduct protected first amendment critical question whether respondent statute may applied without violating constitution may challenge statute ground conceivably may applied unconstitutionally others situations agree answer question method analyzing issue addressing issue shall explain respondent conviction violate constitution two films respondent sold contained nothing lewd exhibition claim films included material literary artistic scientific educational value respondent willing participant commercial market state new york legitimate interest suppressing character state interest protecting children sexual abuse justifies imposition criminal sanctions profit directly indirectly promotion films respect evaluation case different opinion expressed concerning imposition criminal sanctions promotion obscenity contexts holding respondent may punished selling two films require us conclude users films motion pictures containing similar scenes beyond pale constitutional protection thus exhibition films legislative committee studying proposed amendment state law group research scientists studying human behavior opinion made crime moreover least conceivable serious work art documentary behavioral problems medical psychiatric teaching device might include scene one films viewed whole proper setting entitled constitutional protection question whether specific act communication protected first amendment always requires consideration content context holding respondent may challenge new york statute overbroad follows discussion contours category nonobscene child pornography new york may legitimately prohibit defined category abstract setting makes empirical judgment arguably impermissible application new york statute amounts tiny fraction materials within statute reach ante even assuming empirical analysis sound believe conservative approach issue adequately vindicate state interest protecting children cause less harm federal interest free expression hypothetical example illustrate concern assume operator new york motion picture theater specializing exhibition foreign feature films offered movie containing one scene plainly lewd viewed isolation nevertheless part serious work art child actor resided abroad new york interest protecting young sexual exploitation far less compelling case us federal interest free expression however strong adult actor used least three different ways deal statute potential application sort case first one extreme appears hold first amendment inquiry might limited determining whether offensive scene viewed isolation lewd constitutional protection narrowed drastic fashion probably safe concluding tiny fraction materials covered new york statute protected respect hypothetical exhibitor foreign films need uncertainty permissible application statute one lewd scene deprive entire film constitutional protection second extreme new york appeals correctly perceived application cases requiring obscenity determination based artistic value production taken whole afford exhibitor constitutional protection result holding statute invalid overbreadth approach rationale invalidating entire statute premised concern exhibitor understanding potential reach cause engage approach today substitutes broad unambiguous censorship overbroad statute might produce third intermediate position refuse apply overbreadth analysis reasons unrelated prediction concerning relative number protected communications statute may prohibit specifically postpone decision hypothetical case actually arises advocates liberal use overbreadth analysis object postponement ground creates risk exhibitor uncertainty may produce risk obviously interferes less interest free expression abstract advance ruling film simply unprotected whenever contains lewd scene matter brief reasons avoiding overbreadth analysis case qualitative quantitative follow traditional practice adjudicating difficult novel constitutional questions concrete factual situations adjudications tend crafted greater wisdom hypothetical rulings inherently treacherous prone lead us unforeseen errors qualitatively less reliable products adjudication moreover probably safe assume category speech covered new york statute generally lower quality types communication number occasions expressed view first amendment affords forms speech protection governmental regulation forms speech today accepts view putting category speech described new york statute rightful place near bottom hierarchy ante although disagree position speech totally without first amendment protection agree generally marginal speech warrant extraordinary protection afforded overbreadth doctrine difficulty statute application case concur judgment respondent counsel conceded oral argument finding films obscene consistent miller definition tr oral arg see burch louisiana stevens concurring pinkus stevens concurring ballew georgia stevens concurring smith stevens dissenting marks stevens concurring part dissenting part see also schad borough mount ephraim stevens concurring judgment fcc pacifica foundation opinion stevens test child pornography separate obscenity standard enunciated miller may compared purpose clarity miller formulation adjusted following respects trier fact need find material appeals prurient interest average person required sexual conduct portrayed done patently offensive manner material issue need considered whole ante analysis directed entirely permissibility statute coverage nonobscene material empirical evidence however drawn substantially congressional committee reports ultimately reached conclusion prohibition obscene child pornography coupled sufficiently stiff sanctions adequate response social problem senate committee judiciary concluded virtually materials normally considered child pornography obscene current standards comparison blatant pornography materials depict children inconsequential see also pp coverage federal statute limited obscene material see supp iv see schad borough mount ephraim stevens concurring judgment consolidated edison public service stevens concurring judgment fcc pacifica foundation opinion stevens carey population services international stevens concurring part concurring judgment smith stevens dissenting young american mini theatres opinion stevens see fcc pacifica foundation supra opinion stevens young american mini theatres supra see also metromedia city san diego stevens dissenting part schad borough mount ephraim supra stevens concurring judgment