(Written for Prof. Bulger’s Intro. to Oral Communication [COMM100] class at George Mason University.)
I have been on the bench of the United States Supreme Court for five years, and seldom has a case come across my desk where a decision from a lower court literally angered me. Not since the electoral decisions from the Florida Supreme Court in 2001 have I ever heard of a state court being so entirely out-of-line with law and reality as the decision that the New York Court of Appeals made in this case.
Mr. Paul Ferber here owns a porn shop in Manhattan. In this porn shop, some of the material was what can only be considered child pornography.
There is a law on the books in New York, passed in 1977, which expressly “prohibits the production and/or distribution of sexually explicit films or photographs involving children in live ‘sexual performances'”.
Mr. Ferber was convicted by the local courts and sentenced to 45 days in prison, rightfully so. He appealed the conviction on the argument that the law in question was too broad and could be at issue in some terms with First Amendment protections. He lost that appeal, rightfully so. He appealed again to the New York Court of Appeals and this time, for reasons entirely unclear to me, won. From there, the State of New York appealed to us, and rightfully so.
I’ve read your papers, I’ve listened to your arguments, and still I cannot fathom the argument that you and your legal team are making. The 1977 New York law outlaws movies of kids in, QUOTE, “live sexual performances.” You claim this law is so broad that it could be used to deny the sale and promotion of materials protected by the First Amendment.
I’ve challenged you to present any example of material that would be protected by the Constitutional guarantee of free speech and yet prohibited under the law at issue. You have failed to do so.
I’ve challenged you to find any legal basis or precedent to defend the overturning of the initial conviction, you have failed to do so.
I’ve asked you to simply explain to me why a convicted kiddie-porn trafficker, a man on the same level as drug traffickers and illegal gun traffickers, should be let off on a technicality, a very shaky technicality at that. You have failed to do so.
Let me make one thing perfectly clear to you, Mr. Ferber, and to your team of apparently very talented attorneys as well. The First Amendment holds no protection for child pornography. It never has, it never will. Your very claim that any ‘live sexual performances’ by children could possibly fall under free speech or press is bull. Your case rests on rhetoric and fluff, and the fact that the highest court in the state of New York paid any attention to it frightens me.
Your claim that the law is too broad, that it could be used to deny the sale and promotion of material that has First Amendment protection has not been proven in the slightest. In fact the claim that a law specifically outlawing CHILD PORNOGRAPHY comes at odds with the Constitution is not only entirely unjustified, but offensive and insulting to the intelligence and civility of this court.
Kiddie porn has no constitutional protection.
The fact that your case even made it to the Supreme Court of the United States of America in this form is a testament, not only to the skill of your lawyers, but to the weakness of the highest court in New York. We unanimously overturn the decision of the New York Court of Appeals, your initial 45 day prison sentence stands. In addition, we increase your sentence by a magnitude of 320 days bringing your full sentence to one year in prison, and in addition we are imposing a 1 million dollar fine for wasting our time. $500,000 of which to be paid by you personally, and $500,000 to be paid by the lawfirm the represents you. This court is adjourned.