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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, 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). It would be improper to say the majority rejected these parallels because it entirely overlooked these obvious similarities. | | | 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.
The First Amendment Hammer | |
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> | Having decided that depictions of animal cruelty are not exempt from First Amendment protection, the Stevens majority proceeded to "review the [Defendant's] First Amendment challenge under . . . existing doctrine." The Court, opting for a muscular interpretation of the "overbreadth doctrine," held that § 48 was invalid because a substantial number of its applications were unconstitutional, judged in relation to the statute's plainly legitimate sweep. See Stevens, 130 S.Ct. at 1587. Yet, as Justice Alito explained, precedent holds that the overbreadth doctrine is a "strong medicine" that should not be applied before it is determined whether the statute is constitutional as applied to the conduct before the Court. Id. at 1593-94 (Alito, J. dissenting). By refusing to address whether § 48 was unconstitutional as applied to the Defendant's dog fighting videos, the Stevens Court deviated from settled First Amendment precedent and transformed the overbreadth doctrine into "a means of mounting gratuitous wholesale attacks on state and federal laws" in a way that undercuts the "proper functioning of [the] courts" going forward. See Bd. of Trustees of State of New York v. Fox, 492 U.S. 469, 484-85 (1989).
Putting aside the impropriety of rejecting an as applied inquiry, the Stevens majority also unduly expanded the overbreadth doctrine by disregarding the requirement that the party making an overbreadth challenge bears the burden of demonstrating "from the text of the law and actual fact that substantial overbreadth exists--in other words, there must be a "realistic danger" that the statute will significantly compromise the First Amendment rights of parties not before the court. See Stevens, 130 S.Ct., 1594 (Alito, J. dissenting) (citing United States v. Williams, 553 U.S. 285, 301-02 (2007); Virginia v. Hicks, 539 U.S. 113, 122 (2003); Member of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)). While the Stevens Court did attempt to conjure up situations under which § 48 would be unconstitutional--for instance, the majority explained § 48 would outlaw the sale and possession of hunting videos in the District of Columbia (where hunting is illegal)--the majority paid little heed to either § 48's focus on "animal cruelty" or the statute's safe harbors for conduct with "serious" scientific, educational or historical value. Instead, contrary to precedent, the Court relied on "fanciful hypotheticals" to justify its application of the overbreadth doctrine. Accordingly, the Court's message to future defendants was clear: in cases involving depictions of normatively reprehensible and unlawful acts, a party need not argue the unconstitutionality of a statute as applied to his particular conduct; he or she need only offer the court hypothetical fact patters under which the statute may be unconstitutional regardless of whether these examples are grounded in reality. In doing so, the Stevens decision emasculated the well-established hurdles to lowering the overbreadth doctrine hammer.
Conclusion
By cursorily declining to recognize a new category of unprotected expression and unduly broadening the overbreadth doctrine, the Stevens holding will undermine Congress' future efforts to address the online proliferation of normatively objectionable content. Though the First Amendment already stood as a meaningful bulwark against excessive regulation against expression, the Stevens Court, in an unwarranted departure from precedent, empowered defendants and handicapped Congress under the guise of First Amendment law. The result is a less secure, more dangerous United States. | | | |
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