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 predates 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 interest in protecting, (3) violates traditionally-held American values, and (4) enjoys a nexus with the underlying criminal activity by creating and perpetuating a 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, 130 S.Ct. 1577 (2010), blindly affords constitutional protection to broad categories of harmful expression with de minimis social value despite the characteristics these categories share with other unprotected classes 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 unduly handcuffs Congress in legislating against new depictions of illegal and normatively reprehensible conduct that were previously unthought of or technologically infeasible. Second, the Court's overzealous use 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.

Subtitle A

In Stevens, the Supreme Court addressed whether 18 U.S.C. § 48 (1999) violated the First Amendment by prohibiting the creation, sale, or possession of depictions of unlawful animal cruelty. Although Congress passed the law primarily to combat a growing online market for crush videos, the prosecution charged defendant Stevens under § 48 based on his online sale and transmission of videos depicting dog fighting, an illegal activity in all 50 states and under federal law.

As an initial matter, the Court rejected the Government's argument that depictions of animal cruelty--like child pornography, obscenity and speech integral to criminal conduct--fall outside the First Amendment's umbrella of protection. In declining to add depictions of animal cruelty to the list of presumptively unprotected types of speech, the majority seized on the Government's ill-phrased argument that "When a given category of speech enjoys First Amendment depends on a balancing of the value of the speech against its societal costs," but offered little else in the way of analysis to support this conclusion.

First, the Court 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, the Court held that presumptive exemption requires a tradition of prohibiting both the expression at issue and the conduct underlying that expression. And, 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 the arguments in favor of such exemption.

Second, the Court distinguished its prior decision upholding 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 category of expression from First Amendment protection. As Justice Alito argued in dissent in Stevens, both crush videos and depictions of dog fighting implicate concerns that informed (if not controlled) the Ferber majority's decision--(1) they depict unlawful conduct that involves severe injury to helpless victims, (2) the underlying crime cannot be effectively combated without targeting depictions thereof, which incentivize and perpetuate the commercial market that demands the conduct, and (3) the harm caused by the underlying crimes 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 Stevens 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.

-- MatthewLadner - 30 Dec 2011