Law in the Internet Society

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MatthewLadnerSecondPaper 10 - 02 Jan 2012 - Main.MatthewLadner
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Introduction
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 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 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.
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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 hammer as they see fit.
 Conclusion

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Revision 9r9 - 02 Jan 2012 - 08:30:28 - MatthewLadner
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