By Mike Dorf
Updated! Podcast is available now, here.
Today from 10 am to 11 am, I'll be on WHYY's Radio Times (which you can stream live from here), in a segment on the Stevens case, discussed earlier on the blog here. (I'll post a link to the podcast in an update to this entry once it's up on the show's website.) In addition to host Marty Moss-Coane, I'll be joined by Temple law professor Craig Green, who recently wrote an op-ed in the Philadelphia Inquirer, arguing that government power to ban some activity (like dog-fighting) does not entail government power to ban pictures or films of that activity. It's a well-reasoned and well-written op-ed, but it almost entirely fails to address the government's main argument in the case--which is that depictions of illegal torture or killing of actual animals form an unprotected category of speech in the same way that obscenity and child pornography do. (One could point to other categories of unprotected speech, such as fighting words, defamation, and incitement, but the analogy is closer for obscenity and child pornography.)
I say that Professor Green "almost" entirely ignores the crucial issue in the case because he does obliquely acknowledge the potential hole in his position when he says: "In this country, we usually punish bad acts, not bad pictures." The key weasel word in that sentence is "usually." What about the UNUSUAL cases? Should animal cruelty, as defined by the statute at issue in Stevens, be deemed one of them?
I suspect that Professor Green, like many free-speech libertarians, believes that the Supreme Court's obscenity and child-pornography cases are wrong. Indeed, even I think there is no sound basis for treating obscenity as unprotected. Obscenity doctrine appears to be based on the judgment that certain forms of titillation are harmful in themselves, quite apart from any harm done to the people involved in their production. By contrast, the permissibility of prohibitions on child pornography is based on the notion that actual children, who lack the capacity to consent to their sexual exploitation, are harmed in the creation and dissemination of child pornography.
Of course, neither Professor Green nor I have the power to eliminate a Supreme Court doctrine, and it is impossible to imagine that the Court would say that obscenity or child pornography is now fully protected speech. Thus, to analyze the Stevens case as it exists in the real world requires some attention to how to reconcile the speech/conduct distinction (which, I agree with Professor Green, is generally important), with the categorical exceptions we already have. We'll see how it goes on the air.