The Future of “Serious Value” Safe Harbors

The legislature bans a certain kind of speech — for instance, depictions of animal cruelty, or publication of leaked trade secrets — but recognizes that the ban would on its face be very broad, and would cover certain kinds of journalism, art, research, and the like. The legislature therefore exempts works which have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” (This might be because the legislators genuinely want to protect such works, or just because they want to avoid having the law be struck down.) Does this safe harbor rescue the law?

Before United States v. Stevens, the answer might have been yes, by analogy to obscenity law. The Court’s own crafting of the obscenity exception, after all, allows bans on distributing patently offensive depictions or descriptions of sexual conduct that appeal to the prurient interest, but only if the bans have exceptions for speech that has serious scientific, literary, artistic, or political value. But the Stevens opinion rejects this (some paragraph breaks added):

The only thing standing between defendants who sell [certain] depictions [of harm to animals] and five years in federal prison — other than the mercy of a prosecutor — is the statute’s exceptions clause. Subsection (b) exempts from prohibition “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The Government argues that this clause substantially narrows the statute’s reach: News reports about animal cruelty have “journalistic” value; pictures of bullfights in Spain have “historical” value; and instructional hunting videos have “educational” value. Thus, the Government argues, § 48 reaches only crush videos, depictions of animal fighting (other than Spanish bullfighting, see Brief for United States 47-48), and perhaps other depictions of “extreme acts of animal cruelty.”

The Government’s attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause. As the Government reads the clause, any material with “redeeming societal value,” “‘at least some minimal value,’” or anything more than “scant social value.” But the text says “serious” value, and “serious” should be taken seriously. We decline the Government’s invitation — advanced for the first time in this Court — to regard as “serious” anything that is not “scant.” (Or, as the dissent puts it, “‘trifling.’”) As the Government recognized below, “serious” ordinarily means a good bit more. The District Court’s jury instructions required value that is “significant and of great import,” and the Government defended these instructions as properly relying on “a commonly accepted meaning of the word ‘serious.’”

Quite apart from the requirement of “serious” value in § 48(b), the excepted speech must also fall within one of the enumerated categories. Much speech does not. Most hunting videos, for example, are not obviously instructional in nature, except in the sense that all life is a lesson. According to Safari Club International and the Congressional Sportsmen’s Foundation, many popular videos “have primarily entertainment value” and are designed to “entertai[n] the viewer, marke[t] hunting equipment, or increas[e] the hunting community.” The National Rifle Association agrees that “much of the content of hunting media … is merely recreational in nature.”

The Government offers no principled explanation why these depictions of hunting or depictions of Spanish bullfights would be inherently valuable while those of Japanese dogfights are not. The dissent contends that hunting depictions must have serious value because hunting has serious value, in a way that dogfights presumably do not. But § 48(b) addresses the value of the depictions, not of the underlying activity. There is simply no adequate reading of the exceptions clause that results in the statute’s banning only the depictions the Government would like to ban.

The Government explains that the language of § 48(b) was largely drawn from our opinion in Miller v. California (1973), which excepted from its definition of obscenity any material with “serious literary, artistic, political, or scientific value.” According to the Government, this incorporation of the Miller standard into § 48 is therefore surely enough to answer any First Amendment objection.

In Miller we held that “serious” value shields depictions of sex from regulation as obscenity. Limiting Miller‘s exception to “serious” value ensured that “‘[a] quotation from Voltaire in the flyleaf of a book [would] not constitutionally redeem an otherwise obscene publication.’” We did not, however, determine that serious value could be used as a general precondition to protecting other types of speech in the first place.

Most of what we say to one another lacks “religious, political, scientific, educational, journalistic, historical, or artistic value” (let alone serious value), but it is still sheltered from government regulation. Even “‘[w]holly neutral futilities … come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons.’”

Thus, the protection of the First Amendment presumptively extends to many forms of speech that do not qualify for the serious-value exception of § 48(b), but nonetheless fall within the broad reach of § 48(c).

The Court doesn’t also discuss the vagueness of what counts as “serious value,” which would likely lead to an extra danger of viewpoint discrimination by prosecutors, judges, and jurors, as well as deterring speakers who think their speech has serious value but are worried about whether prosecutors, judges, and jurors would agree. But at this point, it didn’t have to, because it was already rejecting the notion that speech that lacks “serious value” is more regulable. Of course, in a future case the Supreme Court might still put more credence into “serious value” safe harbors; but Stevens makes this much less likely.

This naturally still leaves the question: How can all this be reconciled with the use of “serious value” as part of the obscenity test? I think that as a matter of logic it can’t be. But the Court isn’t just after logic; among other things, it also gives some weight to tradition, and the obscenity exception is very deeply rooted in American law. The Supreme Court majority, in 1973 and since, just hasn’t been prepared to entirely set aside laws that had existed for most of the nation’s history, and that had always been seen as consistent with the freedom of speech. It has been willing to cut back those laws, especially in light of how broadly those laws had been applied in the past, just as it was willing to cut back on libel law. But it hasn’t been willing to categorically reject an exception that had for so long been accepted.

But the tradition behind maintaining an obscenity exception also offers a basis for limiting some of the special aspects of obscenity — including the tolerance for the “serious value” safe harbor, as well as for the otherwise extremely vague “patent offensiveness” prong and the ill-defined “prurient interest” prong — to obscenity law. That the Court has accepted the “serious value” prong for obscenity doesn’t it mean that it’s willing to accept it for restrictions that lack the deep historical roots of obscenity law. Perhaps not the best result for those of us who oppose the obscenity exception (as I do). But better than treating the obscenity exception as potentially generative of all sorts of other restrictions as well.