Despite its positive consequences, the Internet has facilitated the proliferation of normatively objectionable expression. The paradigmatic example is child pornography, which is produced today with an eye toward 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 depicts actual unlawful conduct, perpetuates the market for that conduct and warrants legislative attention. This Paper argues that the precedent established in United States v. Stevens, 130 S.Ct. 1577 (2010) improperly affords constitutional protection to broad categories of harmful expression that, like child pornography, possess de minimis social value.

First, the Court's conclusory decision that depictions of unlawful animal cruelty are not exempt from First Amendment protection handcuffs Congress in legislating against unanticipated or once technologically infeasible depictions of illegal conduct. Second, the Court's expansion of the "overbreadth doctrine" transforms the First Amendment into an indiscriminate hammer against laws that are plainly legitimate both as applied and broadly in actual fact.

Handcuffing Congress

In Stevens, the Supreme Court struck down 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 the online market for crush videos, Stevens involved the sale and transmission of 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. 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, which predates the Constitution itself, there is no comparable history regarding depictions of animal cruelty that justifies presumptive exemption. See Stevens, 130 S.Ct. at 1585. Thus, not simply rejecting "freewheeling [congressional] authority to declare new categories of speech outside the scope of the First Amendment," the Court closed the door on novel categories of unprotected speech by limiting the "historic and traditional" categories of exempt expression to those already recognized.

Additionally, the Court distinguished the constitutionality of state laws prohibiting the sale 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 parallels between depictions of animal cruelty and child pornography. As Justice Alito argued, 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 involving severe injury to helpless victims, (2) the underlying conduct cannot be effectively combated without targeting depictions that incentivize and perpetuate the commercial market that demands that 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 Stevens Court appeared willfully blind to these similarities--indeed, it would be improper to say the majority disagreed with the comparison because the Court failed to even seriously consider it.

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 freedom of speech guarantee. 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 next held that § 48 was invalid because a substantial number of its applications were unconstitutional, judged in relation to its plainly legitimate sweep. See Stevens, 130 S.Ct. at 1587. Yet, as Justice Alito explained, the overbreadth doctrine is a disfavored, "strong medicine" that should not be employed before a court determines whether a statute is constitutional as applied. Id. at 1593-94 (Alito, J. dissenting). By refusing to address whether § 48 was unconstitutional as applied to dog fighting videos, the Stevens Court transformed the overbreadth doctrine into "a means of mounting gratuitous wholesale attacks on state and federal laws" 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 this impropriety, the Stevens majority improperly disregarded the requirement that the party making an overbreadth challenge bear the burden of demonstrating "from the text of the law and actual fact" that substantial overbreadth exists. In other words, the Court failed to demand a "realistic danger" a 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)). Though the Court cited situations under which § 48 would be unconstitutional--for instance, it claimed § 48 would outlaw the possession of hunting videos in the District of Columbia, where hunting is illegal--the majority paid no heed to § 48's focus on "animal cruelty" and its safe harbors for conduct with "serious" scientific, educational, or historical value, which place hunting videos outside the scope of § 48. Instead, contrary to precedent, the Court relied on "fanciful hypotheticals" to justify its application of the overbreadth doctrine. In turn, the majority sent a clear message to future defendants: in cases involving depictions of normatively reprehensible and unlawful conduct, a party need not argue the unconstitutionality of a statute as applied to his or her particular conduct. Rather, he or she need only offer the court hypothetical fact patterns under which the statute may be unconstitutional regardless of whether these examples are grounded in reality. The Stevens decision thus has the perverse effect of giving future courts the go-ahead to lower the overbreadth hammer as they see fit.

-- 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