Dogfighting, child porn, and unprotected categories

Lyrissa mentioned yesterday's SCOTUS decision in United States v. Stevens, striking down a federal statute prohibiting the making, sale, or possession of videos depicting animal cruelty.

I was most intrigued by the majority's refusal to recognize a new category of unprotected expression. The Court insisted that unprotected categories are largely defined historically--those categories historically and traditionally excluded from the realm of protection. Beyond these, the Court disclaimed a "freewheeling authority" to define new categories on a simple categorical balancing of the evil to be restricted against the expressive interests. This is a good thing, in my view; we certainly do not need new categories of unprotected expression. And it indicates a broadly libertarian attitude about free speech--somewhat surprising from Justice Scalia.

The problem (and a key point of departure between the majority and Justice Alito's dissent) is what to do about child pornography, a new, non-traditional category of unprotected speech. And here is where, while I agree with the result, I do not believe the majority did a good job.

The Court recognized child pornography (defined, generally, as sexually explicit material made using actual minors) as an unprotected category in New York v. Ferber in 1982. The rationale for the category was a dry-up-the-market theory: Because it was impossible to find and punish the perpetrators of the underlying misconduct (child sexual abuse), the only solution was to close the distribution network for the material and eliminate the demand for the material, thereby eliminating its production and thus the underlying harmful conduct. As Justice Alito emphasized in his dissent, the identical rationale applies as to the "crush videos" and dog-fighting videos that Congress targeted with this statute.

The majority's answer is that the commercial market for child pornography was "intrinsically related" to the underlying child abuse, an "integral part of conduct in violation of a valid criminal statute," and a "proximate link" to the underlying crime. Thus, Ferber and child porn could be linked to a previously recognized, long-established category of unprotected speech--"speech integral to criminal conduct." Three problems here. First, the Court still did not explain why the same thing is not going on here. If there is a proximate link between child porn and the underlying abuse such that the speech is integral to the conduct, why is there no proximate link between crush videos and the underlying animal cruelty? Second, as Mike Dorf argues, the "speech integral to criminal conduct" category (and there is some debate whether it truly is an appropriate independent category) applies where the illegal conduct is carried out through speech (e.g., a crime boss ordering a murder or a true threat), not where post hoc expression somehow makes the illegal conduct economically feasible. Third, Dorf suggests that the Court was simply upholding Ferber on stare decisis grounds, although without taking the necessary rhetorical step of acknowledging that decision was wrong in the first instance.

Of course, I appreciate the Court's reluctance to extend Ferber or the dry-up-the-market rationale. It has been a cornerstone to many anti-pornography arguments, particularly those targeting mythical "snuff films." And the underlying rationale, taken seriously, could be applied to a whole host of expression and to create a range of new unprotected categories. So, again, I am cheered by the Court's unwillingness to wield (or acknowledge) a broad power to create new categories or to defer to the legislature's creation of such new categories.