The Volokh Conspiracy

The Court has repeatedly held that some kinds of speech is categorically excluded from First Amendment protection (at least setting aside certain kinds of content-based discriminations within those exceptions, see R.A.V. v. City of St. Paul, which I won’t discuss here). The standard list is obscenity, incitement, libel (or, more precisely, false statements of fact), fighting words, and threats, but in 1982 the Court also recognized an exception for child pornography, and in 2008 for solicitation of crime. The exceptions have generally been defined quite narrowly, and the labels don’t fully capture the definitions; they don’t cover, for instance, all false statements of fact, or all speech that might be seen as “inciting” or “fighting words” by people who aren’t familiar with the First Amendment doctrine. But they do exist, and are an important part of the First Amendment doctrine.

The Court has generally described these exceptions as involving speech that is of very little constitutional value, and (usually) that is demonstrably harmful. That’s not always so: Some punishable incitement might be political speech, of a sort that’s usually seen as valuable, but might be unprotected just because of the magnitude and immediacy of the harm that it threatens; obscenity is seen as being of low value, but even when the Court recognized the exception it didn’t claim that it had been proven to be harmful. But it was easy to see the exceptions as the product of a category-by-category estimation of value and harm. And this was even before we got to the question whether the speech restriction was narrowly tailored to a compelling government interest; that question is asked as to restrictions on speech that is seen as constitutionally valuable because it’s outside an exception.

But in today’s United States v. Stevens, the Court takes a different approach: The First Amendment exceptions, it reasons, are limited only to those that have been historically recognized, or at least that are linked to the historically recognized ones:

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” …

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” These “historic and traditional categories long familiar to the bar” — including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct — are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”

The Government argues that “depictions of animal cruelty” should be added to the list…. The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “‘legislative judgment that … depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,’” and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”

To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being “‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” … The Government derives its proposed test from these descriptions in our precedents.

But such descriptions are just that — descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.

When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. In New York v. Ferber, for example, we classified child pornography as such a category. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this “balance of competing interests” alone. We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.” As we noted, “‘[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’” Id., at 761 (quoting Giboney v. Empire Storage & Ice Co. (1949)). Ferber thus grounded its analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.

If the Court sticks with this, then it could potentially be an important limit on First Amendment exceptions, and an important guide to future lawyering related to such exceptions.

To be sure, it’s not clear just how speech-protective this will end up being: There are many speech-restrictive traditions in American law; many proposed restrictions could be justified by a sufficiently creative connection to one or another traditionally recognized exception; and the Court’s link of the child pornography exception to Giboney suggests that the Court is indeed willing to accept some rather indirect connections to traditional exceptions. In particular, the “integral part of conduct in violation of a valid criminal statute” exception — while it has to exist to some extent — can be highly problematic if it isn’t suitably defined (see Part II of this article for more on that, and in particular for a criticism of the Giboney opinion). Moreover, whether one likes it or not, much of the speech protection that we enjoy today stems from the Court’s rejecting some traditionally recognized exceptions (such as the exception for blasphemy), and constraining others (such as those for breach of the peace, libel, and obscenity) so that their scope is far narrower than it was before.

Still, at this point it appears that the Court is treating traditional recognition as necessary but not sufficient for First Amendment protection. In particular, the Court has not been showing any signs of endorsing a revival of some of the discarded exceptions, or a broadening of some of the narrowed ones. So the consequence might be that the Court’s stress on the requirement of traditional foundation — again, if it’s willing to stick to it — might indeed help limit the recognition of future exceptions.

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.

In today’s United States v. Stevens decision, the Court struck down on overbreadth grounds 18 U.S.C. § 48, which reads:

(a) Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) … (1) “[D]epiction of animal cruelty” means any visual or auditory depiction … of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State [or other U.S. jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State [or that jurisdiction]….

Here’s an outline of the Court’s reasoning:

1. The statute is not limited to speech that fits in a historically recognized First Amendment exception (more on that in another post). Though animal cruelty has been banned for a long time pretty much throughout the country, depictions of animal cruelty have not been.

2. The statute is very broad, covering not just depictions of activity that is illegal pretty much everywhere in the U.S. (note the distinction from child pornography law in this respect), but also depictions of hunting, agricultural practices, and other things that are legal in some places but illegal in others.

3. The statute should be read as broadly as its written, rather than assuming that prosecutorial discretion will limit it to depictions of “‘extreme’ cruelty.” Prosecutorial discretion is not a sufficient protection for free speech. (See here for a more extended quote.)

4. Nor does the exception for speech with “serious value” sufficiently narrow the law. Even speech that has merely modest value is constitutionally protected (setting aside the traditionally recognized exception for obscenity). I’ll blog a bit more about this point later.

5. Because “the Government makes no effort to defend the constitutionality of § 48 as applied beyond crush videos and depictions of animal fighting,” and because the law does indeed reach a lot of speech beyond those narrow categories, there’s no discussion of whether even such a broad law would be constitutionally defensible (perhaps on the theory that, despite its breadth, it’s necessary to serve a compelling government interest). But the implication, I think, is that the Justices do indeed see this law as being unjustifiably broad.

Now what if the law were narrower, and was focused only on depictions of conduct that is illegal pretty much everywhere (or perhaps literally everywhere) in the country? The Court deliberately declines to address this question. But if I had to defend such a law, I would use the Court’s characterization of the rationale for the child pornography exception: Because “[t]he market for child pornography was ‘intrinsically related’ to the underlying abuse, and was therefore ‘an integral part of the production of such materials, an activity illegal throughout the Nation,’” it fit within a longstanding exception for “speech or writing used as an integral part of conduct in violation of a valid criminal statute.”

I think there is real trouble with this supposed “integral part of criminal conduct” exception, that it needs to be defined much more precisely than the Court has done so far, and that the case on which the Court relies here — Giboney v. Empire Storage & Ice Co. (1949), is highly problematic. (For more, see Part II of this article, though I hope to blog more on the subject.) But I certainly agree that this exception should exist in some version, whether or not it’s broad enough to cover a narrower ban on distributing depictions of those forms of animal cruelty that are illegal pretty much everywhere in the U.S. And it is the existence (and vagueness) of this exception that leaves uncertain the question whether such a narrower ban would be constitutional.