458 U.S. 747 (1982)
In 1977 the New York Legislature enacted Article 263 of the Penal Law.1 Section 263.15 makes it a class D felony for any person, knowing the character and content of the material, to produce, direct, or promote any performance that includes sexual conduct by a child less than sixteen years of age.2 Sexual conduct is defined to encompass actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.3 Promote is defined to include selling, distributing, or advertising such material.4
Paul Ferber operated a Manhattan bookstore that specialized in sexually oriented products.5 He sold two films to an undercover police officer.6 The films were devoted almost exclusively to depicting young boys masturbating.7 Ferber was indicted on two counts of violating § 263.15 and two counts of violating the companion provision § 263.10 that requires the material to be obscene.8
After a jury trial, Ferber was acquitted of the two obscenity counts under § 263.10 but convicted on the two counts under § 263.15.9 The Appellate Division of the New York Supreme Court affirmed the convictions without opinion.10 The New York Court of Appeals reversed, holding that § 263.15 violated the First Amendment because it reached material that would not be obscene under Miller v. California.11
The Supreme Court granted certiorari to review the constitutionality of the New York statute.12
Whether New York Penal Law § 263.15 violates the First Amendment by prohibiting the knowing promotion of performances that include sexual conduct by a child under sixteen even when the material is not obscene under the Miller standard?13
The Miller standard for determining what is obscene does not adequately protect the States’ interest in prohibiting the dissemination of child pornography.14 The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.15 The States are entitled to greater leeway in regulating pornographic depictions of children for two reasons.16 First, the Miller formulation is adjusted in the child pornography context because the State’s interest in protecting children from the physical and psychological harm of sexual exploitation is compelling.17 Second, the value of permitting such depictions is low.18 The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children.19
Yes. The New York statute prohibits the promotion of material depicting children under 16 in sexual conduct.20 Ferber sold films showing young boys masturbating, which falls squarely within the definition of sexual conduct.21 The compelling interest in protecting minors from exploitation justifies the prohibition even without an obscenity finding under Miller, as the distribution is intrinsically related to the sexual abuse of children and the films had no serious value.22
The statute is directed at the hard core of child pornography and is not substantially overbroad.23
The statute does not violate the First Amendment as applied to the facts of this case.24
Related opinions on this issue
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 from its statute.25 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.26 The compelling interests identified in today's opinion suggest that the Constitution might in fact permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct.27 This holds regardless of the social value of the depictions.28
An exception for depictions of serious social value would actually increase opportunities for the content-based censorship disfavored by the First Amendment.29
Joined by Justice Marshall
I agree with much of what is said in the Court's opinion.30 As I made clear in the opinion I delivered for the Court in Ginsberg v. New York, 390 U. S. 629 (1968), the State has a special interest in protecting the well-being of its youth. 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.31
I also agree with the Court that the tiny fraction 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.32 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.33
Two propositions seem perfectly clear to me.34 First, the specific conduct that gave rise to this criminal prosecution is not protected by the Federal Constitution.35 Second, the state statute that respondent violated prohibits some conduct that is protected by the First Amendment.36
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.37 I agree with the Court's answer to this question but not with its method of analyzing the issue.38 Before addressing that issue, I shall explain why respondent's conviction does not violate the Constitution.39
The two films that respondent sold contained nothing more than lewd exhibition.40 There is no claim that the films included any material that had literary, artistic, scientific, or educational value.41 Respondent was a willing participant in a commercial market that the State of New York has a legitimate interest in suppressing.42