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Introduction | | | The Court further explained that despite an American tradition of prohibiting animal cruelty, which predates the Constitution itself, there was is no comparable history of outlawing depictions of animal cruelty that justifies presumptive exemption. 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 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 closed the door on novel categories of unprotected speech notwithstanding the legal merits of arguments in favor of exemption. | |
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< | 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 it failed to even acknowledge them. | >
> | 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 seriously acknowledge 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 | |
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< | Having decided that depictions of animal cruelty are not exempt from First Amendment protection, the Stevens majority then "review[ed] 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 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 deviated from settled First Amendment precedent and 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). | >
> | 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). | | | | |
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< | Putting aside the impropriety of skipping an as applied inquiry, the Stevens majority also unduly expanded the overbreadth doctrine when it disregarded 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, the Court ignored the requirement that there must be a _"realistic danger" that 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)). While the Stevens Court did attempt to conjure up situations under which § 48 would be unconstitutional--for instance, the majority claimed § 48 would outlaw the sale and 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" or its 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 conduct, a party need not argue the unconstitutionality of a statute as applied to his or her particular conduct. Instead, 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. | >
> | Putting aside this impropriety, the Stevens majority also improperly disregarded 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, the Court failed to demand a "realistic danger" that 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" or its 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. 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 doctrine hammer as they see fit. | | | Conclusion |
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