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, which despite predating the Internet is produced today with an eye toward marketing, distribution, transmission 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), improperly affords constitutional protection to broad categories of harmful expression possessing de minimis social value that share important characteristics 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.

Handcuffing Congress

In Stevens, the Supreme Court struck down on First Amendment grounds 18 U.S.C. § 48 (1999), which prohibited the creation, sale, or possession of depictions of unlawful animal cruelty. Although Congress passed § 48 primarily to combat a growing online market for crush videos, defendant in Stevens was charged with violating § 48 by selling and transmitting videos depicting unlawful dog fighting via the Internet.

To begin, 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. Declining to add depictions of animal cruelty to the list of presumptively unprotected expression, 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 to support this conclusion.

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.

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.

The First Amendment Hammer

-- MatthewLadner - 30 Dec 2011