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MatthewLadnerSecondPaper 5 - 01 Jan 2012 - Main.MatthewLadner
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Introduction | | | The Court further explained that despite an American tradition of prohibiting animal cruelty that predates the Constitution itself, there was no comparable history of outlawing depictions of animal cruelty and presumptive exemption was therefore improper. See Stevens, 130 S.Ct. at 1585. Thus, rather than simply rejecting "freewheeling [congressional] authority to declare new categories of speech outside the scope of the First Amendment," the Court implicitly froze the categories of expression presumptively exempt from First Amendment protection. In other words, by limiting the "historic and traditional" categories of exempt expression to those already recognized under Supreme Court precedent, the Stevens majority effectively closed the door on novel categories of presumptively unprotected speech notwithstanding the legal merits of arguments in favor of such exemption. | |
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< | Additionally, the Court distinguished the constitutionality of state laws prohibiting the distribution of child pornography, see New York v. Ferber, 458 U.S. 747 (1982), on the ground that child pornography is a "special case" where the "market" is "intrinsically related to the underlying abuse, and . . . therefore an integral part of the production of such materials, an activity illegal throughout the Nation." Yet, the majority perplexingly failed to even pay lip service to the aspects of depictions of animal cruelty that closely mirror the features of child pornography that the Ferber Court found so compelling in excluding the latter from First Amendment protection. As Justice Alito argued in dissent in Stevens, both crush videos and dog fighting videos implicate the very concerns that informed (if not controlled) the majority's decision in Ferber_--(1) the videos depict unlawful conduct that involves severe injury to helpless victims, (2) the underlying crime cannot be effectively combated without targeting depictions that incentivize and perpetuate the commercial market that demands the conduct, and (3) the harm caused by the underlying criminal activity vastly outweighs the _de minimis (if any) social value the depictions possess. See Stevens, 130 S.Ct. at 1599-1602 (Alito, J. dissent). | >
> | Additionally, the Court distinguished the constitutionality of state laws prohibiting the distribution of child pornography, see New York v. Ferber, 458 U.S. 747 (1982), on the ground that child pornography is a "special case" where the "market" is "intrinsically related to the underlying abuse, and . . . therefore an integral part of the production of such materials, an activity illegal throughout the Nation." Yet, the majority perplexingly failed to even pay lip service to the aspects of depictions of animal cruelty that closely mirror the features of child pornography that the Ferber Court found so compelling in excluding the latter from First Amendment protection. As Justice Alito argued in dissent in Stevens, both crush videos and dog fighting videos implicate the very concerns that informed (if not controlled) the majority's decision in Ferber: (1) the videos depict unlawful conduct that involves severe injury to helpless victims, (2) the underlying crime cannot be effectively combated without targeting depictions that incentivize and perpetuate the commercial market that demands the conduct, and (3) the harm caused by the underlying criminal activity vastly outweighs the de minimis (if any) social value the depictions possess. See Stevens, 130 S.Ct. at 1599-1602 (Alito, J. dissent). | | | The practical effect of the Court's shaky logic, beyond the animal cruelty context, is the evisceration of the Government's ability to argue that any expression not already exempt from First Amendment protection falls presumptively outside the Constitution's guarantee of freedom of speech. Despite the potential for the vast dissemination of harmful expression previously kept at bay by technological constraints, the Court opted to bind the hands of Congress with a souped-up First Amendment that goes beyond what the Constitution does and ought to require. |
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