Law in the Internet Society

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MatthewLadnerSecondPaper 9 - 02 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 despite predating the Internet 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 (1) depicts actual unlawful conduct, (2) involves a victim the government has a strong interest in protecting, (3) violates traditionally-held American values, and (4) enjoys a nexus with the underlying criminal activity by creating and perpetuating a marketplace that demands the prohibited underlying 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 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.
 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.

Handcuffing Congress

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In Stevens, the Supreme Court struck down 18 U.S.C. 48 (1999), which prohibited the creation, sale, or possession of depictions of unlawful animal cruelty. Although Congress passed 48 primarily to combat a growing online market for crush videos, the Stevens defendant was charged under 48 based on his sale and transmission of videos depicting unlawful dog fighting via the Internet.
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In Stevens, the Supreme Court struck down 18 U.S.C. 48 (1999), which prohibited the creation, sale, or possession of depictions of unlawful animal cruelty. Although Congress passed 48 primarily to combat the online market for crush videos, Stevens involved the sale and transmission of videos depicting unlawful dog fighting via the Internet.
 To begin, the Court rejected the Government's argument that depictions of animal cruelty--like child pornography, obscenity and speech integral to criminal conduct--fall outside the First Amendment's umbrella of protection. The majority seized on the Government's ill-phrased argument that "When a given category of speech enjoys First Amendment depends on a balancing of the value of the speech against its societal costs," but offered little else to support this conclusion.
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The Court further explained that despite an American tradition of prohibiting animal cruelty, which predates the Constitution itself, there was is no comparable history of outlawing depictions of animal cruelty that justifies presumptive exemption. See Stevens, 130 S.Ct. at 1585. Thus, rather than simply rejecting "freewheeling [congressional] authority to declare new categories of speech outside the scope of the First Amendment," the Court implicitly froze the categories of expression exempt from First Amendment protection. In other words, by limiting the "historic and traditional" categories of exempt expression to those already recognized under Supreme Court precedent, the Stevens majority closed the door on novel categories of unprotected speech notwithstanding the legal merits of arguments in favor of exemption.
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The Court further explained that despite an American tradition of prohibiting animal cruelty, which predates the Constitution itself, there is no comparable history regarding depictions of animal cruelty that justifies presumptive exemption. See Stevens, 130 S.Ct. at 1585. Thus, not simply rejecting "freewheeling [congressional] authority to declare new categories of speech outside the scope of the First Amendment," the Court closed the door on novel categories of unprotected speech by limiting the "historic and traditional" categories of exempt expression to those already recognized.
 
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Additionally, the Court distinguished the constitutionality of state laws prohibiting the sale of child pornography, see New York v. Ferber, 458 U.S. 747 (1982), on the ground that child pornography is a "special case" where the "market" is "intrinsically related to the underlying abuse, and . . . therefore an integral part of the production of such materials, an activity illegal throughout the Nation." Yet, the majority perplexingly failed to even pay lip service to the parallels between depictions of animal cruelty and child pornography. As Justice Alito argued, both crush videos and dog fighting videos implicate the very concerns that informed (if not controlled) the majority's decision in Ferber: (1) the videos depict unlawful conduct involving severe injury to helpless victims, (2) the underlying conduct cannot be effectively combated without targeting depictions that incentivize and perpetuate the commercial market that demands that conduct, and (3) the harm caused by the underlying criminal activity vastly outweighs the de minimis (if any) social value the depictions possess. See Stevens, 130 S.Ct. at 1599-1602 (Alito, J. dissent). The Stevens Court appeared willfully blind to these similarities--indeed, it would be improper to say the majority disagreed with the comparison because the Court failed to seriously acknowledge it.
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Additionally, the Court distinguished the constitutionality of state laws prohibiting the sale of child pornography, see New York v. Ferber, 458 U.S. 747 (1982), on the ground that child pornography is a "special case" where the "market" is "intrinsically related to the underlying abuse, and . . . therefore an integral part of the production of such materials, an activity illegal throughout the Nation." Yet, the majority perplexingly failed to even pay lip service to the parallels between depictions of animal cruelty and child pornography. As Justice Alito argued, both crush videos and dog fighting videos implicate the very concerns that informed (if not controlled) the majority's decision in Ferber: (1) the videos depict unlawful conduct involving severe injury to helpless victims, (2) the underlying conduct cannot be effectively combated without targeting depictions that incentivize and perpetuate the commercial market that demands that conduct, and (3) the harm caused by the underlying criminal activity vastly outweighs the de minimis (if any) social value the depictions possess. See Stevens, 130 S.Ct. at 1599-1602 (Alito, J. dissent). The Stevens Court appeared willfully blind to these similarities--indeed, it would be improper to say the majority disagreed with the comparison because the Court failed to even seriously consider it.
 The practical effect of the Court's shaky logic, beyond the animal cruelty context, is the evisceration of the Government's ability to argue that any expression not already exempt from First Amendment protection falls presumptively outside the Constitution's freedom of speech guarantee. Despite the potential for the vast dissemination of harmful expression previously kept at bay by technological constraints, the Court opted to bind the hands of Congress with a souped-up First Amendment that goes beyond what the Constitution does and ought to require.

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