The Volokh Conspiracy

Dahlia Lithwick (Slate) Is in Fine Form Today,

Eugene Volokh • October 6, 2009 6:14 pm

writing about the Court’s argument in United States v. Stevens, the case about video depictions of animals being killed or injured.

Disclosure: I participated in writing an amicus brief in Stevens, supporting the defendant.

Categories: Uncategorized

38 Comments

matthew says:

Professor Volokh,

I’m interested in your take on Alito’s hypothetical about the Human Sacrifice channel, where the sacrifice took place in another country outside the Court’s jurisdiction. Stevens’ lawyer was criticized in the press for her answer that the government should work to stop the illegal acts, rather than make it illegal to show the acts. And the Chief Justice reportedly sounded surprised by the answer and asked, “You think it is unconstitutional for Congress to forbid the ‘Human Sacrifice Channel’?”

I think if asked I would probably give the same answer Stevens’ lawyer did, even though it doesn’t feel like the right answer.

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October 6, 2009, 6:27 pm
Greg Dodge says:

I agree that it is a tough question. (Though to avoid FCC whathaveyou I would say it was a human sacrifice website administrated in the United States — though the content itself could be generated from wherever — that streams video of human sacrifices. As an aside Margaret Atwood described just such websites in her 2004 novel, Oryx and Crake.)

I suppose Millett could have just said, “You probably could ban it, but you’d have to do it with a narrower statute.” But that begs the question whether depictions of human sacrifice (or generic mutilations, etc) are protected speech. I mean it’d be odd if the Saw movies could be outright banned, but then are you back to the distinction of whether it has no protection unless it has redeeming social value? I’m not sure. As Matthew said, I’d probably give the same (unsatisfactory) answer. But it would seem odd if Congress couldn’t ban the 24/7 live snuff film website.

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October 6, 2009, 6:37 pm
ajk says:

I assume you’re using “fine form” ironically, considering that Lithwick seems much more interested in presenting her (not particularly clever or amusing) hunting metaphors rather than the actual issues of the case or nature of the arguments and in fact incorrectly describes the statute in a way that obscures one of the significant issues.

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October 6, 2009, 6:37 pm
Greg Dodge says:

P.S. This Lithwick piece really was great.

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October 6, 2009, 6:37 pm
Soronel Haetir says:

As far as the human sacrifice issue goes, I have in fact seen video of murders broadcast on TV. Not as gruesome certainly, but still. Also the History Channel has broadcast film of the last public execution in France (a beheading) numerous times. So we are again back to the redemption test.

What if a channel decided to start broadcasting the various beheading videos put out by Islamists? I would expect such to pass the test for redemption despite their incredibly gruesome nature.

As I said on SL&P child porn is the only area I am aware of where documentation of a crime is itself criminal to possess. Bad as CP might be for the victims I am not sure it makes jurisprudential sense.

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October 6, 2009, 6:51 pm
Cato The Elder says:

I can’t tell if you are being sarcastic or rather gently chiding, Professor. Perhaps her densely layered metaphors might have worked well as part of a one or two paragraph lede, but the language quickly grew stale in my reading — personally, I found it hard to just reach the end of the thing. One might choose to describe it as “overwrought.”

By all means she should put this article at the very top of her professional CV.

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October 6, 2009, 7:09 pm
Kazinski says:

If Congress can pass laws outlawing the depiction of animal cruelty, then they should be able to pass laws depicting any illegal act. In that case creating selling or possessing any depiction of a juvenile possessing a handgun, someone growing or smoking marijuana, drag racing, or in the near future smoking cigarettes, could be outlawed. Is the fact that they are not currently illegal content based discrimination?

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October 6, 2009, 7:48 pm
ShelbyC says:

Anybody know how to draw the line between “the human sacrifice channel” and reporting about human sacrifices?

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October 6, 2009, 8:00 pm
neurodoc says:

ajk: I assume you’re using “fine form” ironically, considering that Lithwick seems much more interested in presenting her (not particularly clever or amusing) hunting metaphors rather than the actual issues of the case or nature of the arguments and in fact incorrectly describes the statute in a way that obscures one of the significant issues.

Agreed. If this were handed in as a class assignment, I would give it no more than a C+. It does nothing to educate the reader about the relevant law, and the hunting conceit never really clicked, only becoming more and more wearisome paragraph after paragraph.

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October 6, 2009, 8:20 pm
M. Gross says:

One wonders if a video of Ms. Lithwick’s brutal bludgeoning of that metaphor would run afoul of the statute.

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October 6, 2009, 8:47 pm
Orin Kerr says:

I thought it was a great article. It communicated both the legal ideas and how plainly the Justices were on the side of the defense, all in a funny and entertaining way.

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October 6, 2009, 10:14 pm
The Volokh Conspiracy » Blog Archive » Dahlia Lithwick (Slate) Is … | I Film Channel says:

[...] the original here: The Volokh Conspiracy » Blog Archive » Dahlia Lithwick (Slate) Is … Tuesday, October 6th, 2009 Film Channel TAGS: also-the-history, beheading-videos, film-channel, [...]

October 6, 2009, 10:39 pm
uh_clem says:

But Dahlia’s a liberal, and as we all know liberals have no sense of humor, so the article couldn’t possibly be funny.

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October 7, 2009, 8:21 am
Adam B. says:

Help me out here, as I haven’t read the briefs yet. Why doesn’t the Ferber argument — we outlaw the depictions to lessen the demand for the underlying and inherently vile act — carry any weight here?

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October 7, 2009, 9:07 am
egd says:

neurodoc: If this were handed in as a class assignment, I would give it no more than a C+.

Not bad for Lithwick.

Also, I would describe the metaphors as “mixed” rather than demonstrating “fine form.”

Justice Alito “comes soaring out at Katyal like a ninja” after Chief Justice Roberts, “the leader of the pack”, “makes his way to the front of the pride” and “toys with his prey at first,” before Justice Breyer, “who has been waiting[,] . . . pounces on the injured Katyal.”

Is it a pride or a pack? What do ninjas have to do with a pride or pack? If Katyal has already been savaged, isn’t the appearance of Alito definitely un-ninja-like? I am not familiar with any depictions of ninjas where the hero fights off all the other ninjas, and then is surprised to find another ninja.

And what’s with the “Deer. Headlights.” line? Are we talking about animals hunting prey, or running over an animal with a car?

Before long, Justice Scalia “moves in for the kill.” But wait a minute, back on page 1, Scalia “practically leaps at the back of [Katyal’s] neck” and “bears down even harder.” And that’s even discounting that, after leaping on Katyal, Scalia “must smell his fear.”

What the heck is going on here?

From what I can figure, a group of lions and wolves attack an animal, appearing and disappearing at will to maintain metaphors, before a ninja pounces out of the tall grass to hit the animal with a truck.

Clever indeed.

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October 7, 2009, 9:29 am
sk says:

ninjas? lions and wolves? I hope it climaxed with sharks with laser beams on their frickin’ heads...

sk.

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October 7, 2009, 9:35 am
Bryan Long says:

Apparently Scalia and Alito aren’t Goebbels and Himmler when they happen to be on the side Lithwick is paid to shill for. I’m sure they’ll assume their usual positions of obloquy when the next Second Amendment case comes down the pipe.

That said, this high school creative writing exercise of hers is less amusing than her usual hyperventilating over the glories of left-wing judicial activism.

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October 7, 2009, 10:38 am
New Pseudonym says:

@ egd
And is it Ninjas, Lions, or Wolves who wear camouflage bow ties?

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October 7, 2009, 11:27 am
sk says:

Hmm. I read the article, and I agree, it was good. The ninjas thrown in were a bit awkward, but otherwise, good job.

Sk.

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October 7, 2009, 11:30 am
egd says:

New Pseudonym: @ egd
And is it Ninjas, Lions, or Wolves who wear camouflage bow ties?

Well, we can certainly rule out ninja, as Alito fills that role (see p.2).

Maybe Lithwick was trying to portray the lions/wolves as a right/left mix. Since Roberts is the “leader of the pride,” we can attribute the right to lions. By default, when he “makes his way to the front of the pack” he is stepping in front of the liberals, the wolves. This is further evidenced by the fact that Sotomayor had the opening attack.

So I can say with clarity that it is wolves, not ninjas or lions, who wear camouflage bow ties.

However, this still makes it unclear how Alito fills the role of ninja. Clearly the ninja, appearing to be a neutral arbiter between the lions and wolves (because it makes sense), should be represented by Kennedy, generally considered the most centrist Justice.

And I still have no idea who was driving the truck.

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October 7, 2009, 11:54 am
ChrisTS says:

Lions, Ninjas,and Wolves. Oh Dear!

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October 7, 2009, 11:54 am
ChrisTS says:

Should be:

Lions and Ninjas and Wolves. Oh My!

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October 7, 2009, 12:07 pm
zippypinhead says:

Well, at least this Slate article made me chuckle, for a change. Best line from Lithwick’s piece, in the style of the narration Marlin Perkins used to do in the old Mutual of Omaha’s Wild Kingdom:

“We are about to witness a man torn limb from limb by justices wielding razor-sharp hypotheticals.”

Although after reading the article, I did have a twinge of pity for the poor SCOTUS custodial staff who got stuck cleaning up all the blood splatters following the argument...

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October 7, 2009, 12:12 pm
Dilan Esper says:

anyone else notice a big tension in scalia’s approach to videos depicting animal abuse vs. porn? porn, after all, advocates free sexuality, but scalia would permit bans on the ground that it is thought to be immoral.

funny how things that happen to offend scalia are unprotected.

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October 7, 2009, 12:25 pm
Orin Kerr says:

Dilan Esper,

How do you explain Scalia’s vote in Texas v. Johnson, the flagburning case?

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October 7, 2009, 4:17 pm
Dilan Esper says:

Professor Kerr:

1. I don’t necessarily know if Scalia is offended by flag burning.

BUT:

2. Even if he is, that is core political speech (and indeed, if you read David Savage’s book on the deliberations of the Supreme Court during that period, that’s what he said to his colleagues in conference).

Animal cruelty videos are NOT core political speech, but they do advocate a viewpoint. It is, however, THE DIRECTLY ANALOGOUS VIEWPOINT to the viewpoint being advocated by porn.

The difference is that traditional macho morality holds that kiling animals = OK while filming sex = grave sin against God and public morality. The thing is, THAT test isn’t written into the First Amendment, and the same logic that Scalia uses to seemingly say that these videos are protected because they advocate animal cruelty can be used to say that sex videos are protected because they advocate sex.

In other words, the only First Amendment test operative HERE is whether Scalia is offended. But he’s willing to suspend that test with respect to core political speech.

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October 7, 2009, 4:23 pm
Soronel Haetir says:

Dilan Esper: Professor Kerr:1. I don’t necessarily know if Scalia is offended by flag burning.BUT:2. Even if he is, that is core political speech (and indeed, if you read David Savage’s book on the deliberations of the Supreme Court during that period, that’s what he said to his colleagues in conference).Animal cruelty videos are NOT core political speech, but they do advocate a viewpoint. It is, however, THE DIRECTLY ANALOGOUS VIEWPOINT to the viewpoint being advocated by porn.The difference is that traditional macho morality holds that kiling animals = OK while filming sex = grave sin against God and public morality. The thing is, THAT test isn’t written into the First Amendment, and the same logic that Scalia uses to seemingly say that these videos are protected because they advocate animal cruelty can be used to say that sex videos are protected because they advocate sex.In other words, the only First Amendment test operative HERE is whether Scalia is offended. But he’s willing to suspend that test with respect to core political speech.

From Scalia’s standpoint that may well be an acceptable outcome. Certainly there are plenty of 1st amendment cases claiming that core political speech is the most protected.

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October 7, 2009, 4:47 pm
Dilan Esper says:

Samuel:

I don’t have any problem with Scalia’s vote in the flag-burning case, and I also understand and find to be perfectly principled (even if I don’t agree with) the argument that the First Amendment affords greater protection to political speech.

What gets me about the animal cruelty case is here’s Scalia making the EXACT SAME FIRST AMENDMENT ARGUMENT PORN PRODUCERS MAKE– that visual depictions of this activity are a form of advocacy on an issue of public concern. I happen to think that’s an extremely good argument and a valid ground for First Amendment protection. Scalia, however, does not– at least he does not when it comes to things that morally offend him.

So he’s not applying a consistent test, even though he touts himself as a consistent, neutral, principled jurist who doesn’t believe in deciding cases based on his personal predilections.

It’s just one more small example of how overrated an intellect and a jurist Nino Scalia is.

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October 7, 2009, 4:52 pm
Leo Marvin says:

Dilan,

I agree Scalia seems inconsistent, but isn’t it a logical leap from that to “In other words, the only First Amendment test operative HERE is whether Scalia is offended”?

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October 7, 2009, 6:33 pm
Dilan Esper says:

I agree Scalia seems inconsistent, but isn’t it a logical leap from that to “In other words, the only First Amendment test operative HERE is whether Scalia is offended”?

No, it’s no logical leap at all. Scalia thinks that advocating bullfighting is a valid viewpoint (he said it in oral argument) but thinks that advocating sex isn’t one (he calls this a form of “pandering” unprotected by the First Amendment). And given his well-established religious conservative views, it’s perfectly obvious what the difference is between the two cases.

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October 7, 2009, 6:50 pm
Visitor Again says:

Not great literature–who expects that from what is really little more than a blog piece written under deadline pressure?–but it was amusing. And accurate–some of the justices do pounce on their prey during oral argument, and some advocates do act at times like deer caught in the headlights. Even if it didn’t come off entirely, I appreciated the effort to provide us with something different.

Yeah, Scalia lets his own moral views, his own preferences, dictate the result in some first amendment cases. That’s terrible from the point of view of principled adjudication–it actually approves content discrimination–but it’s nothing new. By the way, promotion/advocacy have long been viewed as bad in the pornography/obscenity area. See the Blue Balls, Pennsylvania case involving poor Ralph Ginzburg. Justice Brennan really blew it on that one.

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October 7, 2009, 7:08 pm
Leo Marvin says:

Dilan, I don’t dispute your conclusion. I suspect it may be correct. What I question is just your certainty about another person’s state of mind.

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October 8, 2009, 1:33 am
Ricardo says:

Bryan Long: Apparently Scalia and Alito aren’t Goebbels and Himmler when they happen to be on the side Lithwick is paid to shill for.

Can you kindly provide a citation for where Lithwick has ever compared a Supreme Court Justice to any high-ranking Nazi official?

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October 8, 2009, 3:11 am
Michael Golden says:

Dilan Esper,
In the transcript of the oral argument,
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08–769.pdf
Scalia gives the reason why he thinks obscenity is unprotected but depiction of animal cruelty is protected: obscenity is a traditionally unprotected category of speech, while depiction of animal cruelty is not. See pages 46 and 51. Now you can argue that obscenity wasn’t really historically unprotected speech, or that Scalia is wrong to follow history, tradition, and precedent in this area of law. Tough arguments, but you can try to make them. But until you grapple with Scalia’s stated reason for ruling the way he does, it’s premature to assert that it is “perfectly obvious” that he is just ruling on the basis of his personal predilections.

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October 8, 2009, 5:04 am
Dilan Esper says:

Scalia gives the reason why he thinks obscenity is unprotected but depiction of animal cruelty is protected: obscenity is a traditionally unprotected category of speech, while depiction of animal cruelty is not. See pages 46 and 51. Now you can argue that obscenity wasn’t really historically unprotected speech, or that Scalia is wrong to follow history, tradition, and precedent in this area of law.

I think that Scalia’s use of tradition (and by the way, there’s NO precedent here– this is pure tradition) is a cover for his own moral judgments. There are many cases where he doesn’t follow tradition– from Loving v. Virginia to affirmative action cases. He follows it in obscenity cases because he is an extremist right-winger whose religious beliefs condemn porn. Indeed, his “pandering” theory of sexual speech goes far beyond traditional obscenity and would permit the government to ban non-obscene sexual speech on the grounds that it promotes sex acts that he finds to be immoral.

So no, tradition is an excuse for Scalia’s TRADITIONAL VALUES to be written into the Constitution.

He does exactly what he accuses the left of doing– reading his values into the Constitution when they aren’t there.

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October 8, 2009, 3:20 pm
Dilan Esper says:

By the way, it’s worth noting that the “obscenity” that the framers may have understood to be outside the scope of the First Amendment was comprised of text and drawings (photography had not been invented yet), and the modern obscenity doctrine would hold that such items would be protected (and I assume Scalia would actually concur with that). Thus, there is little or no overlap between the modern category of “obscenity” and the tradition that Scalia says justifies it. The only thing the tradition and the modern doctrine share is the word “obscenity”.

Further, traditional obscenity was broad enough that it very well might have extended in some instances to graphic descriptions of brutality against animals. It was all at the discretion of the local censor, after all. Thus, if Scalia were actually concerned with rigorously applying tradition to interpret the First Amendment, it would seem to me that any tradition that was stretched far enough to encompass visual depictions of sex would also justify the censorship of visual depictions of animal cruelty.

Scalia, of course, is not actually concerned with rigorously applying tradition. He just thinks that an invisible man in the sky has ordered us not to use our penises and vaginas in certain ways, and he’s not going to interpret the Constitution as protecting the activities that his imaginary friend has called wicked and evil.

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October 8, 2009, 9:42 pm
neurodoc says:

I am not prepared to join Dilan Esper in his objections to Scalia’s line of questioning in United States v Stevens, but I’ll use this opportunity to express my objections to Scalia’s line of questioning in Salazar v Buono yesterday. http://www.washingtonpost.com/wp-dyn/content/article/2009/10/07/AR2009100703460.html To me, in that one Scalia sounds little different from Pat Buchanan vituperating against those who opposed the erection of a large crucifix at Auschwitz by the Carmelite nuns who established themselves there.

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October 8, 2009, 10:33 pm
Cheat For Club Penguin says:

Your RSS feed is only posting some of your articles, i’m on a macbook running google reader if that helps

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December 29, 2009, 10:57 am

Dahlia Lithwick (Slate) Is in Fine Form Today,

38 Comments

matthew says:

Greg Dodge says:

ajk says:

Greg Dodge says:

Soronel Haetir says:

Cato The Elder says:

Kazinski says:

ShelbyC says:

neurodoc says:

M. Gross says:

Orin Kerr says:

The Volokh Conspiracy » Blog Archive » Dahlia Lithwick (Slate) Is … | I Film Channel says:

uh_clem says:

Adam B. says:

egd says:

sk says:

Bryan Long says:

New Pseudonym says:

sk says:

egd says:

ChrisTS says:

ChrisTS says:

zippypinhead says:

Dilan Esper says:

Orin Kerr says:

Dilan Esper says:

Soronel Haetir says:

Dilan Esper says:

Leo Marvin says:

Dilan Esper says:

Visitor Again says:

Leo Marvin says:

Ricardo says:

Michael Golden says:

Dilan Esper says:

Dilan Esper says:

neurodoc says:

Cheat For Club Penguin says:

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