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, 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

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.

-- MatthewLadner - 30 Dec 2011

You state "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". This implies that the court is creating an "if-then" kind of rule --> if there is no longstanding tradition of prohibition, then presumptive exemption is improper. When reading the case, it didn't appear that way to me.

The court stated that because §48 explicitly regulates expression based on content, it is “ ‘presumptively invalid,’ . . . and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817. The government offered a series of reasons why it believes the law shouldn't be invalidated, but failed to satisfy its burden. The court discussed historical regulations banning animal cruelty, which the court distinguished from a ban on "depictions" of animal cruelty. The court went on to reject other reasons offered by the government such as the depictions of animal cruelty failing to satisfy some sort of social cost balancing test, a test which the court rejected outright.

It appears that the government simply failed to meet its burden. It does not appear that the court ruled that because no tradition of prohibition for depiction exists, it must be that there is no presumptive exemption from first amendment protection. It appears that this was simply one reason weighing in favor of not presumptively exempting the depictions. Whether or not there is a tradition of prohibition is a relevant factor, not a determinative one. If it was determinative, the court would not need to continue by addressing the government's arguments about social cost balancing, etc. Historical regulation of the content at issue is a factor that strengthens the argument that there is an exemption, not a determinative prerequisite and will be used as a distinguishing factor in later cases. Thus, it doesn't appear how the court "implicitly froze" the categories of exemptions to those already recognized under supreme court precedent, and doesn't appear to "soup-up" first amendment protection.

-- AustinKlar - 01 Jan 2012