People v. Ferber

OPINION OF THE COURT

The United States Supreme Court has remanded this case for our reconsideration. That court held, for the first time, that a State is not prohibited under the First Amendment of the United States Constitution from proscribing certain nonobscene sexual depictions of children. The Supreme Court has also indicated that such a law may be upheld unless it reaches impermissible applications (New York v Ferber, 458 US_, 102 S Ct 3348, 3362). The only question remaining in this case is whether the defendant’s rights under this State’s Constitution were violated.

The protection afforded by the State constitutional right of free expression (NY Const, art I, § 8) is as broad as that provided by the First Amendment and, as the Supreme Court has noted, may in fact provide greater protection (PruneYard Shopping Center v Robins, 447 US 74). However, the type of performance prohibited by the statute, which was the subject of this prosecution, is not entitled to that greater protection.

Thus we conclude that the statute (Penal Law, § 263.15), as applied to this case does not violate the right of freedom of expression guaranteed by the State Constitution. We decline the invitation of the appellant and the amici to address or to anticipate questions as to the constitutionality of the statute as applied to other factual situations.

The order of the Appellate Division should be affirmed.

(concurring). While I agree that the statute as applied to the instant case does not violate the State Constitution, I would as a matter of State constitutional law recognize an affirmative defense for literary, scientific, educational, governmental or other similar justification, paralleling that now set forth in subdivision 1 of section 235.15 of the Penal Law. Each of the four Supreme Court opinions warns that the statute will have some unconstitutional applications (New York v Ferber, 458 US , —, —, _, _, 102 S Ct 3348, 3363, 3364, 3365, 3366, 3367). In my view, without such a defense, the chilling effect of section 263.15 of the Penal Law upon serious depictions which do not actually threaten the harms addressed by that statute will cause greater harm to this State’s interest in free expression than is constitutionally permissible.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Meyer concurs in a separate opinion in which Judge Fuchsberg also concurs.

Upon reargument, following remand by the United States Supreme Court, order affirmed.