Paul Ira Ferber owned a bookstore in Times Square. If you have ever been to Times Square, I don't have to tell you what kind of a bookstore.
Among the items stocked in this "adult" bookstore were two 12-minute films starring children in the nude engaging in sexual acts.
Because of this "merchandise," Paul Ira Ferber was arrested. He was tried under a 1977 New York state statute that has made it illegal to promote sexual performances, legally obscene or not, by a child. The performances were judged not to be legally obscene, so the jury convicted him under the lesser count of a law like the ones in about 29 other states.
But last week, the New York Court of Appeals reversed Ferber's conviction. They said, in essence, that you can't outlaw the promotion of materials "traditionally entitled to constitutional protection . . . under the First Amendment." If the film is not legally "obscene," it makes no difference that it involves children.
Score one for Ferber. Score two for "adult" bookstores.
Unless the case is appealed, the state of New York and perhaps every other state may be, as a dissenting judge wrote, "without power to prohibit the dissemination of films depicting children of tender years engaging in actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse or lewd exhibition of the genitals unless the child's performance is determined to be legally obscene."
This decision is likely to become an emotional flash point in the heated, lengthy debate between the value of the First Amendment and the evil of pornography, between those who want to protect free speech and those who want to eliminate the violence and exploitation promoted by the smut merchants.
In fact, the night after this decision came down, the subject was tackled in a well-publicized rematch at Harvard between two "heavies." On the anti-pornography side was Andrea Dworkin, the eloquent feminist and polemical author of "Pornography." On the pro-free speech side was Alan Dershowitz, the Harvard Law School professor and civil liberties lawyer.
The debate was not, as Dworkin put it, "an intellectual car crash," but there was very little meeting of the minds.
Dworkin condemned the anti-female politics of pornography and its deliberate systematic violence against women and children. Dershowitz condemned the dangers of banning: who is to do the banning? what are the lines between the pornographic and the sexually explicit?
Dworkin was concerned with the philosophical underpinnings of this social disease and Dershowitz was concerned with case law. Dworkin talked about the repression of women and children; Dershowitz about the repression of free speech. Dworkin talked about the "real live" people posing for pornography; Dershowitz about the "material."
But the two were better at debating than engaging, at polarizing than resolving. It seemed to me that night, in the wake of this New York decision, that most of us agree with both of those "opposing" sides: we believe in the First Amendment and in the destructive power of the most violent and degrading pornography. We don't want to win this debate; we want to resolve it.
There are no perfect solutions. But it is not impossible, for example, to discriminate between sexually explicit material that is loving and that which is violent. It's not impossible to discriminate between those people who "consent" to participate in sexually explicit films and those who do not. It's not impossible to discriminate legally between the live act and the photograph. It cannot be impossible to discriminate between adults and children.
If the court strikes down portions of the "kid-porn" laws, then those laws have to be rewritten. If we can only use the law against forcing or permitting children to perform, then we have to strengthen that enforcement. If the First Amendment issue is tricky, then perhaps we can, as Dershowitz suggested, amend child labor laws.
The point is that we have to protect our free speech and our children. We have to begin to make the really fine-line distinctions that can drive lawyers to distraction or to the drawing board. And we have to do this before we lose the other fine line -- the one that describes our humanity.