If there is one fixed star in our constitutional sky, it is that content-based restrictions on free expression are repugnant and almost never permissible. If we are to create new categories of unprotected speech, we should do so as if we were amputating a limb. As a man would certainly cut off his leg to save his life, he would not do so in order to avoid mere discomfort. Similarly, carving off a piece of the First Amendment should be a sacred act – and we should, as a society, receive such an overwhelming benefit from such constitutional amputations that we are willing to surrender not only the speech that such a new exclusion removes from the marketplace of ideas, but every bit of derivative speech, every thought that might emanate from it, and any collateral freedom that might also fall down the cliff as the slippery slope of censorship gets just that much steeper.
UNITED STATES v. STEVENS
In United States v. Stevens, __F.3d__ (3d. Cir. 2008), the federal government begged for judicial activism of the darkest order by requesting that the appeals court engage in constitutional amputation.
We have made this trade-off in the past to combat the scourge of child pornography, but truly no other category of speech has risen to the level that the courts have been willing to categorically place it outside the First Amendment without the application of reservations, safeguards, and multi-part tests. In rejecting the government’s case, the Third Circuit reaffirmed that the right to free expression is so sacred that even prevention of animal cruelty is not a sufficiently loathsome societal cancer to justify lopping off a slice of The First Amendment.
The case stemmed from a conviction of a rather unsavory fellow. Robert Stevens was convicted of selling dog-fighting videos. Aside from being a bit demented, doing so was a violation of 18 U.S.C. § 48. That law provides, in pertinent part:
Creation, Sale, or Possession.— 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.
Stevens’ lawyer, public defender Karen Gerlach, argued that Section 48 was an unconstitutional infringement upon free expression. The government countered that the prevention of cruelty to animals is a cause of such great importance that we should all give up a little bit of liberty in order to combat it. Although the Court did not accept this argument, the Court did not give mere lip service to the reprehensibility of cruelty to defenseless animals:
The acts of animal cruelty that form the predicate for § 48 are reprehensible, and indeed warrant strong legal sanctions. The Government is correct in arguing that animal cruelty should be the subject of not only condemnation but also prosecution. To this end, anti-animal cruelty statutes have been enacted in all fifty states and the District of Columbia. These statutes target the actual conduct that offends the sensibilities of most citizens. (source)
The Court noted that § 48 did not criminalize the conduct of being cruel to animals, but criminalized the “creation, sale, or possession of a depiction of animal cruelty. The Court also noted that any law prohibiting or regulating a depiction is obviously a law that must be examined under the fabric of The First Amendment.
THE GOVERNMENT SEEKS TO CREATE A NEW CATEGORY OF UNPROTECTED SPEECH
The government claimed that depictions of animal cruelty are categorically unprotected speech. Finding no support for this in existing law, the Bush administration sought the creation of a sparkling new category of unprotected speech. The Court held strong to the Constitutional principle that such requests are not granted lightly:
It has been two and a half decades since the Supreme Court last declared an entire category of speech unprotected. See New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256 (2002) (refusing to recognize virtual child pornography as a category of unprotected speech). Other types of speech that are categorically unprotected include: fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), threats, Watts v. United States, 394 U.S. 705 (1969), speech that imminently incites illegal activity, Brandenburg v. Ohio, 395 U.S. 444 (1969), and obscenity, Miller v. California, 413 U.S. 15 (1973). The common theme among these cases is that the speech at issue constitutes a grave threat to human beings or, in the case of obscenity, appeals to the prurient interest. (source)
I question whether it is the proper function of the Court to declare that any category of speech falls outside the First Amendment. Nevertheless, Chaplinsky, Watts, & Brandenburg did not create a new category of unprotected speech – but simply recognized that the mere fact that an act involves words does not automatically mean that it is wrapped in the sacred cloth of the First Amendment. To invoke the quote most often used by those who would suppress free speech, yet who have very little understanding of The First Amendment, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47 (1919) (setting out the “clear and present danger” test). See also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (“It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as a integral part of conduct in violaton of a valid criminal statute.”)
On the other hand, Ferber and Miller were the result of the Supreme Court short-cutting the Constitutional Amendment process by deciding that the First Amendment contains un-written limitations visible only to the justices. Miller seems incapable of application to forms of speech other than erotica, and every attempt to expand Miller has, blessedly, seemed to die an early death.
Ferber, on the other hand, seems to be the result of nothing more than the Court shoehorning the logic in Giboney into the context of child pornography due to the fact that we so universally condemn child porn.
The Third Circuit gives us a good explanation of why the result in Ferber is not such a bitter pill — even absolutists like me can swallow it. Child pornography is not merely a depiction of a crime. It is a category of expression in which the crime and the speech collapse into one another. Child pornography is sui generis and “is the only place in First Amendment law where the Supreme Court has accepted the idea that we can constitutionally criminalize the depiction of a crime.” U.S. v. Stevens at 19 (citing Amy Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921, 970 (2001); See also Osborne v. Ohio, 495 U.S. 103, 144 n.18 (1990) (Brennan, J., dissenting)
For these reasons, we are unwilling to extend the rationale of Ferber beyond the regulation of child pornography without express direction from the Supreme Court. (source at 8)
I agree with Ferber’s general principle that an adult can not produce child pornography without abusing a child, therefore the expression and the crime merge. However, the Ferber Court completely skipped over the possibility that consenting 17 year olds could photograph one another, and yet would still be considered to be creating contraband child pornography. Nevertheless, given the fact that almost nobody would dare stand up for the right to disseminate child pornography, and given the right that even an absolutist (like myself) is willing to forego this one small bit of freedom in order to prevent wide-scale child abuse, Ferber has not been roundly criticized. As long as Courts exercise the kind of restraint that the Third exercised, even I will not find myself on the absolutist side of the Ferber divide.
In U.S. v. Stevens, the Third Circuit realized the gravity of wielding the Ferber blade. Although the Third does not condemn the doctrine of First Amendment amputations, the court expresses extreme discomfort with the process – even when the activism is in pursuit of a noble goal – and refuses to commit such a constitutional travesty on its own authority.
Without guidance from the Supreme Court, a lower federal court should hesitate before extending the logic of Ferber to other types of speech. The reasoning that supports Ferber has never been used to create whole categories of unprotected speech outside of the child pornography context. Furthermore, Ferber appears to be on the margin of the Supreme Court’s unprotected speech jurisprudence. Adler, supra, at 936 (noting that, aside from child pornography, “when the Court eliminates a category of expression from constitutional protection, it carefully defines the speech that can be banned; the definition then serves as a limit on legislative enactments”) (source)
Therefore, without discounting the seriousness of the crime of animal cruelty, and without condemning efforts to protect animals, the Third Circuit held that there was no support for the proposition that restriction of free speech rights in favor of animal protection is a compelling reason to leave part of the First Amendment on the cutting room floor.
DESENSITIZATION THEORY REJECTED
The most heartening part of the case is the court’s rejection of the desensitization theory. This frequent stated justification for censorship tells us that the type of disfavored speech desensitizes the viewer to the horrors depicted in the disfavored speech, therefore the speech must be banned lest it lead to bad thoughts and bad acts thereafter. For example, second-wave feminists still screech that viewing pornography desensitizes men to rape (even as their third wave successors have rejected this idiocy while embracing erotica). In Stevens, the government dusted off that theory and says that when we citizens view depictions of animal cruelty, we will be desensitized to it, and thus more likely to commit such acts.
The Third Circuit has a more enlightened view of human free will:
This reasoning is insufficient to override First Amendment protections for content-based speech restrictions. The Supreme Court has rejected a similar argument in the context of virtual child pornography, stating that [w]hile the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.” Ashcroft v. Free Speech Coalition, 535 U.S. at 250 (internal citation omitted). When balanced against First Amendment rights, the “mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” Id. at 253. The Supreme Court cannot speak more clearly than it has on this issue: “The prospect of crime . . . by itself does not justify laws suppressing protected speech.” Id. at 245. Similarly, general references to speech repugnant to public mores cannot serve as a compelling government interest sufficient to override constitutional protections of speech. See, e.g., United States v. Eichman, 496 U.S. 310, 319 (1990) (“If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”) (citing Texas v. Johnson, 491 U.S. 397, 414 (1989)); United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 826 (2000)). (source at 27-28)
LOW VALUE SPEECH
Yet another common argument put forth by those who would suppress speech is that the speech is “low value speech.” Anti-capitalists have characterized advertising as “low value speech.” Atheists call religious speech “low value.” Social conservatives and critical gender theorists call pornography “low value speech,” and so on. Most who believe in equality would call racist speech “low value speech.” However, the notion of “low value” speech is a lie – it all depends on whose ox is being gored. “Low value speech,” is just code for “speech you don’t like.” Those who would prefer an America without a First Amendment always call speech they would rather not compete with in the marketplace of ideas “low value,” and thus use this as a justification for their calls for censorship.
Consider the example of the film Two Girls, One Cup (I can never resist a 2G1C reference). I would agree that a film of two girls defecating and vomiting on one another is speech with any great value, the manure of 2G1C has served as the soil from which an entire genre of comedy has spawned. See here and here – both safe for work. Once you’ve watched those, spend a few hours on YouTube watching 2G1C reaction videos. Perhaps 2G1C was of low value at the time it was made, but just like baseball cards, you never can tell which one will be worth something one day. See also goatse (look it up yourself) vs. The Unintentional Goatse. (Need I go on?)
The Third Circuit not only rejected the Bush administration’s argument that animal cruelty video is low value speech, but it hints that it would be very reluctant to paint any speech with such a label.
First, outside of patently offensive speech that appeals to the prurient interest, the First Amendment does not require speech to have serious value in order for it to fall under the First Amendment umbrella. What this view overlooks is the great spectrum between speech utterly without social value and high value speech. (source at 33)
The dissent in this case is intellectually lazy, intellectually dishonest, and constitutionally sloppy in taking the position that the First Amendment is a mere balancing test.
[T]he Supreme Court has consistently reaffirmed that the Government may, consistent with the Constitution, restrict certain types of speech when the social value of the speech is so minimal as to be plainly outweighed by the Government’s compelling interest in its regulation. See, e.g., Virginia v. Black, 538 U.S. 343, 358-59 (2003) (citing Chaplinsky, 315 U.S. at 571-72); R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992) (quoting Chaplinsky, 315 U.S. at 572)… Because depictions of animal cruelty possess the integral characteristics of unprotected speech when considered under these precedents, we conclude that it escapes First Amendment protection.
The dissent is lying – plain and simple. Virginia v. Black did not hold what the dissent says it does — it holds that cross burning accompanied by an intent to intimidate or threaten is proscribable. R.A.V. was protective of free speech to such an extent that it invalidated a cross-burning statute, and reliance on Chaplinsky truly shows a spirit of desperation. See James L. Swanson, Unholy Fire: Cross Burning, Symbolic Speech, and the First Amendment: Virginia v. Black, 2003 CATO SUP. CT. REV. 81, 90 (2002-2003) (noting that “later precedents diluted the authority of Chaplinsky and, while the Court has never overruled it, Chaplinsky has certainly been marginalized“) (cited in majority and dissent).
The dissent seems overly fixated on the prevention of animal cruelty, rather than its proper function as arbiters of what is constitutionally permissible. At times, the dissent seems to wish to paint the majority as condoning cruelty to animals, rather than protective of its charge.
The dissent oversimplifies Miller v. California, claiming that:
[The] Supreme Court has made clear that a category of constitutionally unprotected speech may be regulated as long as the regulations do not extend to portions of speech within that category with “serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973).
And with that constitutional misstatement issued, the dissent returns to the simple balancing test which would, if allowed to run amok, render The First Amendment meaningless within 20 years as times change but judicial decisions linger on:
We find that section 48 outlaws depictions that “are no essential part of any exposition of ideas, and are 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 “what about the puppies?” crowd, like the dissent, may paint this decision as a disaster for animal rights. For example, the L.A. Times reports that the decision is a “setback for the animal rights movement.” (source). No wonder the public is clueless when it comes to the First Amendment, when this is the way that a major newspaper leads into a landmark First Amendment case.
Animal cruelty is a horrible thing, and Mr. Stevens is not the kind of person I want anywhere near my family. Nevertheless, at the risk of losing my more conservative readers, I must invoke Noam Chomsky who said: If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.
The Third Circuit was confronted with a politically difficult and constitutionally easy question. Fortunately, the majority remembered its oath of office, and upheld and defended the constitution against a domestic enemy rather than succumbing to the emotional plea to place yet another piece of asphalt on the road to hell.