AGO 98014.

• Court: Nebraska

Nebraska Attorney General Opinions 1998. AGO 98014. DATE: February 20, 1998SUBJECT: Child Pornography Prevention Act - constitutionality of proposed amendmentsREQUESTED BY: Kermit A. Brashear, SenatorWRITTEN BY: Don Stenberg, Attorney General Barry Waid, Assistant Attorney General Question Presented: Whether proposed amendments to Nebraska's laws relating to child pornography are constitutional in light of the First Amendment to the United States Constitution and the corresponding provisions of the Nebraska Constitution. Since the proposed legislation does not seek to amend the statute criminalizing the possession of child pornography, this opinion will not address the impact, if any, on Neb. Rev. Stat. § 28-813.01 (Reissue 1995). LB 1349 would amend the prohibitions against child pornography to include compiling, for purposes of reproduction and distribution, a compilation of multiple visual depictions of full child nudity when manifesting a design to elicit a sexual response in a viewer with a sexual interest in children. Answer: A state has more freedom to proscribe works which portray sexual acts or lewd exhibitions of genitalia by children than other pornographic depictions. See New York v. Ferber, 458 U.S. 747, 756, 102 S.Ct. 3344, 3353 (1982). Child pornography is not entitled to First Amendment protection provided the conduct to be prohibited is adequately defined by state law. See Ferber, 458 U.S. 764, 102 S.Ct. 3358. Statutes regulating child pornography are not subject to limitations placed upon statutes governing adult pornography. One need not find that the material appeals to the prurient interests of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. See Ferber, 458 U.S. 747, 102 S.Ct. 3348 (quoted in State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1992)). The greater latitude allowed the government in restricting child pornography is permitted due to the "surpassing importance" of the government's interest in preventing the sexual exploitation and abuse of children. See Ferber, 458 U.S. at 755, 102 S.Ct. at 3355. While government is given great latitude when regulating child pornography, the definition of child pornography must be limited. See Ferber, 458 U.S. at 764, 102 S.Ct. at 3358. The...