Tag Archives | United States v. Stevens

First Amendment Exceptions and History

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 […]

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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

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United States v. Stevens: A Brief Analysis, Plus the Future of Animal Cruelty Depiction Bans

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 […]

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