Law in the Internet Society

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MatthewLadnerSecondPaper 11 - 05 Jan 2012 - Main.MatthewLadner
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 Introduction
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Despite its many positive consequences, the Internet has also resulted in the proliferation of normatively objectionable expression. The paradigmatic example is child pornography, which is produced today with an eye toward a robust online marketplace. See H.R. Conf. Rep. 108-66, 501(6) (2003). Child pornography is not, however, the only category of online expression that depicts actual unlawful conduct and enjoys a nexus with the underlying criminal activity by creating and perpetuating a marketplace that demands that conduct. This Paper argues that the precedent established in United States v. Stevens, 130 S.Ct. 1577 (2010) improperly affords constitutional protection to broad categories of harmful expression possessing de minimis social value that share important characteristics with other, unprotected classes of expression.
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Despite its positive consequences, the Internet has facilitated the proliferation of normatively objectionable expression. The paradigmatic example is child pornography, which is produced today with an eye toward a robust online marketplace. See H.R. Conf. Rep. 108-66, 501(6) (2003). Child pornography is not, however, the only category of online expression that depicts actual unlawful conduct, perpetuates the market for that conduct and warrants legislative attention. This Paper argues that the precedent established in United States v. Stevens, 130 S.Ct. 1577 (2010) improperly affords constitutional protection to broad categories of harmful expression that, like child pornography, possess de minimis social value.
 
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First, the Court's conclusory decision that depictions of unlawful animal cruelty are not, like child pornography, exempt from First Amendment protection handcuffs Congress in legislating against unanticipated or once technologically infeasible depictions of illegal and normatively reprehensible conduct. Second, the Court's expansion of the "overbreadth doctrine" transforms the First Amendment into an indiscriminate hammer against laws that are plainly legitimate both as applied and broadly in actual fact.
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First, the Court's conclusory decision that depictions of unlawful animal cruelty are not exempt from First Amendment protection handcuffs Congress in legislating against unanticipated or once technologically infeasible depictions of illegal conduct. Second, the Court's expansion of the "overbreadth doctrine" transforms the First Amendment into an indiscriminate hammer against laws that are plainly legitimate both as applied and broadly in actual fact.
 Handcuffing Congress
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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 hammer as they see fit.
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Putting aside this impropriety, the Stevens majority improperly disregarded the requirement that the party making an overbreadth challenge bear 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" 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" and its safe harbors for conduct with "serious" scientific, educational, or historical value, which place hunting videos outside the scope of 48. 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.
 
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Conclusion

By cursorily declining to recognize a new category of unprotected expression and broadening the overbreadth doctrine, the Stevens holding undermined Congress' ability to address the online proliferation of normatively objectionable content. Though the First Amendment already stood as a muscular bulwark against the regulation of expression, the Stevens Court, in an unwarranted departure from precedent, empowered defendants and handicapped Congress under the guise of First Amendment law. The result is a less secure, more dangerous United States.

 

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