In my post yesterday on the release of OJ Simpson's If I Did It by Ron Goldman's family, I asked rhetorically how different this book is from a snuff film. Here I want to pursue a related question: What protection, if any, does the First Amendment afford to snuff films? (A snuff film, for anyone unfamiliar with the term, is a film of an actual murder.)
Obviously, there is no First Amendment protection for making a snuff film. That's murder. (Oddly enough, the filming of sex can give it protection it otherwise lacks. If John the john pays Harriet the hooker to have sex with him, that's the illegal act of prostitution, but if Pete the pornographer pays Paul the porn star and Paula the porn start to have sex with each other, then, so long as the resulting film is not obscene, that's legal. For a further exploration of this oddity, see Sherry Colb's 2005 FindLaw column here. But I digress. Surely, there is no analogous exception for making snuff films.)
What about exhibiting a snuff film, once made? The federal courts do not seem to have addressed the question whether snuff films can be made illegal. A few lower court judges and some commentators have said---without much analysis---that snuff films are proscribable on the same theory that child pornography is: Just as children are not legally capable of consenting to be filmed, so we can presume that no one (or almost no one) would consent to be murdered for a film (or any other purpose).
Meanwhile, some other commentators have simply asserted that snuff films are protected by the First Amendment, citing, for example, the circulation on the internet of the video of Daniel Pearl's murder. The best argument for this view would rely on the Supreme Court's 1991 decision in Simon & Schuster v. Crime Victims Board. There, the Court invalidated New York's "Son of Sam Law," which required that all income from a criminal's book or other depiction of his crime be divulged to a fund for victims. (The actual case involved Henry Hill's Wiseguy, later made into the film Goodfellas.) Singling out speech about crimes, among all the ways that a criminal may profit from his crime, the Court said, is an impermissible content-based restriction. So, it could be argued, any law that specifically targeted snuff films, would be likewise content-based. Moreover, because the First Amendment pretty clearly protects a journalist who displays footage of a killing in which he in no way participated, going after the snuff film would be impermissibly speaker-based.
That's a pretty good argument, but not a slam dunk. In Simon & Schuster itself, the Court did not say that the law was per se invalid because content based (as Justice Kennedy in a concurrence in the judgment thought it should have). Rather, the Court subjected the NY law to strict scrutiny and found it wanting. Justice O'Connor's majority opinion cited numerous valuable works (including works by Emma Goldman, Dr. Martin Luther King, Jr., and Henry David Thoreau) that could not have been published (except at a financial loss) under the law. By contrast, it is hard to imagine what public interest is served by the distribution of a film showing someone being murdered. And of course, as in the child pornography context, prohibition of the end product should dampen demand and thus diminish the incentive for the making of snuff films.
Needless to say, I've only scratched the surface of this interesting but perhaps unimportant topic. Why unimportant? Because, according to the great internet debunker, Snopes.com, there are no actual snuff films out there. To my mind, however, this is just a matter of nomenclature. Snopes apparently doesn't count terrorist videos of beheadings and other killings (perpetrated at least in substantial part for the effect that the films will have on their audience) as snuff films, but much of the analysis of this "genre" would be the same. Moreover, lots of academic attention gets paid to interesting but merely hypothetical questions, and so it strikes me that a good law journal article or student Note could be written about this topic. (If you choose to write one, be sure to credit Dorf on Law with the inspiration. Nothing drives blog traffic like footnotes in law review articles!)