Child pornography viewing as a violation against the child's dignity is often used a justification for banning production, distribution, and possession of child pornography. In a concurring opinion in New York v. Ferber, Justices Brennan and Marshall wrote that child pornography distribution might not be as harmful to children if the depiction were a serious contribution to art or science:
|| But in my view application of 263.15 or any similar statute to depictions of children that in themselves do have serious literary, artistic, scientific, or medical value, would violate the First Amendment. As the Court recognizes, the limited classes of speech, the suppression of which does not raise serious First Amendment concerns, have two attributes. They are of exceedingly "slight social value," and the State has a compelling interest in their regulation. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572 (1942). The First Amendment value of depictions of children that are in themselves serious contributions to art, literature, or science, is, by definition, simply not "de minimis." See ante, at 761. At the same time, the State's interest in suppression of such materials is likely to be far less compelling. For the Court's assumption of harm to the child resulting from the "permanent record" and "circulation" of the child's "participation," ante, at 759, lacks much of its force where the depiction is a serious contribution to art or science. The production of materials of serious value is not the "low-profile, clandestine industry" that according to the Court produces purely pornographic materials. See ante, at 760. In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed "material outside the protection of the First Amendment."