Despite its many positive features and consequences, the Internet has also resulted in the proliferation of normatively objectionable expression. The paradigmatic example is child pornography--while child pornography and, more generally, adult-child sexual activity, predate the Internet, child pornography today is produced with an eye toward marketing, distribution, retransmission and consumption in a robust online marketplace. See H.R. Conf. Rep. 108-66, § 501(6) (2003). Child pornography is not, however, the only category of online expression that (1) depicts actual unlawful conduct, (2) involves a victim the government has a strong interested in protecting, (3) violates traditionally-held American values, and (4) shares a nexus with the underlying criminal activity by creating and perpetuating a significant marketplace that demands the prohibited underlying conduct. This Paper argues that the Supreme Court's First Amendment jurisprudence, as explained in United States v. Stevens, unduly and blindly affords constitutional protection to broad categories of expression of de minimis social value despite the characteristics they share with other unprotected forms of expression. First, the Court's conclusory decision that depictions of unlawful animal cruelty are not, like child pornography, presumptively exempt from First Amendment protection effectively handcuffs Congress in legislating against previously unthought of or technologically infeasible depictions of illegal and normatively reprehensible conduct. Second, the Court's overly aggressive interpretation of the "overbreadth doctrine" transforms the First Amendment into an indiscriminate hammer against laws that are plainly legitimate both as applied to the category of expression at issue and broadly in actual fact.

-- MatthewLadner - 30 Dec 2011