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People v. Ferber

441 N.E.2d 1100, 57 N.Y.2d 256, 455 N.Y.S.2d 582, 1982 N.Y. LEXIS 3701
CourtNew York Court of Appeals
DecidedOctober 21, 1982
StatusPublished
Cited by29 cases

This text of 441 N.E.2d 1100 (People v. Ferber) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Ferber, 441 N.E.2d 1100, 57 N.Y.2d 256, 455 N.Y.S.2d 582, 1982 N.Y. LEXIS 3701 (N.Y. 1982).

Opinions

OPINION OF THE COURT

Per Curiam.

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.

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Bluebook (online)
441 N.E.2d 1100, 57 N.Y.2d 256, 455 N.Y.S.2d 582, 1982 N.Y. LEXIS 3701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ferber-ny-1982.