[185] New York v. Ferber, 458 U.S. 747, 756-64 (1982). The five rationales set out in Ferber were as follows: 

1. The state has a "'compelling'" interest in "'safeguarding the physical and psychological well-being of a minor.'" Id. at 756-57 (quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607 (1982)).

 

2. Child pornography is "intrinsically related to the sexual abuse of children in at least two ways.
First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.
Second, the distribution network for child pornography must be closed" in order to control the production of child pornography. Id. at 759.
The Court went on to explain that the production of child pornography is a "low-profile, clandestine industry" and that the "most expeditious if not the only practical method of law enforcement may be to dry up the market for this material" by punishing its use. Id. at 760.

 

3. "The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production" of child pornography. Id. at 761.

 

4. The possibility that there would be any material of value that would be prohibited under the category of child pornography is "exceedingly modest, if not de minimis." Id. at 762.

 

5. Banning full categories of speech is an accepted approach in First Amendment law and is therefore appropriate in this instance. Id. at 763-64.

[186] The first three rationales address this central harm.
The fourth rationale goes to the assumption that the category of speech in question is "low value"; banning it therefore presents little First Amendment concern. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 66-73 (1976) (outlining hierarchy of valued speech).
The fifth rationale recognizes the Court's precedent of having banned whole categories of speech before.  

[187] The abuse of an actual child is "the distinguishing characteristic of child pornography." Attorney General's Report, supra note 28, at 405.  

[188] Miller v. California, 413 U.S. 15, 24 (1973) (establishing exception in obscenity law for works that possess such value).

Although the Court has never entertained a child pornography case in which serious value was raised as a defense, the Court's dicta in Ferber rejected the idea of an exception for value.
Ferber held that the lack of an exception for serious value did not render the law so overbroad that it failed under the doctrine of "substantial overbreadth." Ferber, 458 U.S. at 766-74.

The concurring opinions in Ferber suggest some discord on the question of serious value among the members of the Court at the time of the 9-0 decision.

For example, Justice O'Connor wrote to emphasize that artistic value was irrelevant to the harm of child abuse that child pornography law sought to eradicate.

"For example, a 12-year-old child photographed while masturbating surely suffers the same psychological harm whether the community labels the photograph 'edifying' or 'tasteless.' The audience's appreciation of the depiction is simply irrelevant to New York's asserted interest in protecting children from psychological, emotional, and mental harm." Id. at 774-75 (O'Connor, J., concurring).

In contrast, Justice Brennan assumed that serious artistic value would be a valid defense in a case if it were raised. He wrote that harm to a child and value of a depiction bear an inverse relationship to one another:

"The Court's assumption of harm to the child resulting from the 'permanent record' and 'circulation' of the child's 'participation' ... lacks much of its force where the depiction is a serious contribution to art or science." Id. at 776 (Brennan, J., concurring in the judgment) (citations omitted).

In Hilton, the First Circuit indicated that serious value would be a defense under the Child Pornography Prevention Act of 1996 when the prosecution was based on virtual child pornography that did not involve a real or recognizable child. United States v. Hilton, 167 F.3d 61, 71 (1st Cir. 1999). 

In any event, the Court's unwillingness to except works of serious artistic value from the definition of child pornography, and the assumption that it is unlikely that any works that might be child pornography might also possess even de minimus social value, are simply contrary to contemporary artistic practice. For a discussion of the importance of child nudity in art, see infra notes 248-251.

[189] This rationale of child abuse is also key to the Court's and Congress's assumption that child pornography can be only images rather than text. The supposition is that text does not record actual abuse, but rather can spring from the imagination.  

[190] See supra note 188 (discussing Justice O'Connor's adherence to the idea that value is irrelevant to harm).  

[191] 495 U.S. 103, 111 (1990).  

[192] Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the government cannot prohibit mere possession of obscene material).  

[193] Osborne, 495 U.S. at 109 ("The State does not rely on a paternalistic interest in regulating Osborne's mind. Rather, Ohio has enacted [its law prohibiting possession of child pornography] in order to protect the victims of child pornography ... .").  

[194] Id. at 111 ("Evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.") (citing Attorney General's Report, supra note 28, at 649).  

[195] The Court did not state that this rationale could stand alone in justifying the prohibition of child pornography. Rather, the Court added this rationale to a list of others. See id.
("Other interests also support the Ohio law.").
For a discussion of the constitutional problems raised by this rationale, see Adler, Inverting the First Amendment, supra note 6.  

[196] Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 121 (codified in scattered sections of 18 U.S.C.).  

[197] " 'Child pornography' means any visual depiction ... of sexually explicit conduct, where ... (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; [or] (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct ... ." 18 U.S.C. 2256(8)(B)-(C) (Supp. IV 1998).  

[198] Child Pornography Prevention Act of 1996 121(10)(B).  

[199] 121(11)(A).  

[200] United States v. Hilton, 167 F.3d 61, 65 (1st Cir. 1999);
United States v. Acheson, 195 F.3d 645, 648 (11th Cir. 1999).

But see Free Speech Coalition v. Reno, 198 F.3d 1083, 1086 (9th Cir. 1999), cert. granted, Ashcroft v. Free Speech Coalition, 121 S.Ct 876 (2001).
The Ninth Circuit found that the law "criminalizes disavowed impulses of the mind" and "evil ideas," and therefore violated the First Amendment. Id. at 1094.