Wednesday, April 21, 2010

Of Flags and Kittens

By Mike Dorf

(Below is a slightly amended version of the original post, modified to clarify my argument in response to a private email.)

Three Justices who were on the Supreme Court in 1989 remain on the Court today: Justices Stevens, Scalia and Kennedy.  That was the year the Court decided Texas v. Johnson, finding that a state could not, consistent with the First Amendment, forbid flag desecration.  Justices Scalia and Kennedy joined Justice Brennan's majority opinion.  (So did Justices Marshall and Blackmun.) Justice Stevens dissented (as did CJ Rehnquist and Justices White and O'Connor).  The Stevens dissent was less emotional than that of the Chief Justice but still wholly unsatisfying as a matter of logic.  It boiled down to the assertions that a) the flag is a unique symbol and b) permitting flag desecration would tarnish the flag as a symbol.  Assertion a) is inherently untestable, while b) has proven false.  If anything, the legalization of flag burning has made it less popular.  Ask yourself when was the last time you heard about someone subject to U.S. jurisdiction burning an American flag as a form of protest or disrespect.

Why do I focus today on this case from over 20 years ago?  Partly to remind readers that even as we rightly celebrate the many accomplishments of Justice Stevens during his long Supreme Court career, we should not make the mistake of assuming he got them all right.  But also because I was jarred by the juxtaposition of his dissent in Johnson with his decision to join the 8-1 majority in yesterday's ruling in United States v. Stevens.  There the Court, per CJ Roberts, invalidated a federal statute forbidding the creation, sale or possession of certain depictions of animal cruelty.

It is striking to me how poorly reasoned the Stevens majority opinion is on the crucial question.  The government argued--and Justice Alito agreed in his lone dissent--that depictions of animal cruelty are closely analogous to the depictions of child pornography that the Court said are an unprotected category of speech in New York v. Ferber.  In both instances, evidence was offered that prosecutions of perpetrators of the underlying act--whether animal torture or sexual exploitation of human children--is inadequate to address the problem: Child pornography, crush videos and videos of illegal dogfighting are produced in secret without indications of where or when the acts depicted occurred.  In Ferber the Court said that these factors justified a demand-side solution: By prosecuting those who possess child pornography, the government would eliminate the incentive for its production.  The government said the same thing about depictions of animal cruelty in Stevens.  Justice Alito did a good job of showing why the case it had made was at least as persuasive as the case made in Ferber.

The majority's response was practically oxymoronic.  CJ Roberts began by saying that even though the Court had sometimes "described" the balance of costs and benefits of treating certain forms of expression as unprotected, those "descriptions" did not amount to the reasons for lack of protection.  Particular categories were unprotected, he said, because from 1791 to the present, the freedom of speech was never thought to include expression in those particular categories.

One would therefore expect the Court to have then said that child porn was one of the traditionally unprotected categories.  But of course it wasn't.  Given that girls of 12 or younger were commonly married in colonial times, it would be nearly impossible to argue that the framers of the First Amendment thought sexualization of children was somehow beyond the pale.  Yet the judgment that sexualization of children is immoral underlies the proscription of child pornography.

And in any event, the Court in Stevens did not say that child porn is a traditional category.  Instead, the majority said this:
We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.”
But this is exactly the sort of functional argument the Court, just a couple of pages earlier, said was inappropriate as a basis for finding a category of speech unprotected.  To be sure, the language the Court quoted was an effort to shoehorn child porn into a broader proscribable category.  The Court said that "speech integral to criminal conduct" is traditionally proscribable.  Yet the case it cited for this proposition is Giboney v. Empire Storage & Ice Co.   In that 1949 decision, the Court held that labor picketing can be enjoined, notwithstanding its expressive nature, where it is the means to violate an antitrust law. The same principle would apply to a murder prosecution of a mafia boss who accomplished his illegal deed by using words--namely, by instructing his hitmen to carry out his plan.  That is a far cry from prohibiting the display of illegal acts, which is what is at issue in both Ferber and Stevens.

Thus, Ferber did not really fit into any pre-existing traditional categorical exception for "speech integral to criminal conduct."  The Ferber Court could only have been justified in recognizing an exception for child porn on functional rather than traditional grounds.  And the functional grounds were the market-drying-up rationale--the very rationale offered as the basis for recognizing an exception for depictions of animal cruelty in Stevens.  Yet the Court in Stevens declined to recognize a new category because it said that new exceptions cannot be based on functional arguments, only historical pedigree.

The ultimately self-contradictory nature of the majority opinion in Stevens leads me to conclude that there must be some other explanation for the result.  In my view, the best account is that the current Court is actually substantially more libertarian on free speech issues than prior Courts.  At least among legal elites, there is now a left-right consensus against censorship, whereas thirty years ago conservatives tended to vote against free speech claims.  However, the Justices do not wish to disturb the body of existing law.  The perfectly honest way to do this would be to say that considerations of stare decisis lead them to adhere to their previously recognized categorical exceptions to the First Amendment but that they will not recognize any new ones.  I would respect and perhaps even agree with that position.

However, the Justices apparently don't want to be heard to say that Ferber was wrongly decided as an original matter, and so they can't rely on stare decisis alone.  Thus we get the misdirection: The Court says that historical pedigree is the only basis for exceptions, even while making a very weak effort to explain the child porn exception--the one most closely analogous to the exception sought in Stevens--as rooted in history.

Another possibility is that the Justices in the Stevens majority simply don't take seriously the underlying interest in forbidding animal torture.  Justice Alito says in dissent that he doesn't think that interest as weighty as the interest in forbidding sexual exploitation of children, but that it is nonetheless weighty enough.  He acknowledges that "[t]he animals used in crush videos are living creatures that experience excruciating pain."  He then gives a graphic example of a crush video targeted by the federal law:
[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.
And that brings me back to Justice Stevens.  Perhaps by now he has changed his mind about flag desecration, but he has not, to my knowledge, ever said anything of the sort.  This is at best highly peculiar.  In Johnson, he was willing to say that the Court should newly recognize flag desecration as an unprotected category of expression.  Yet in the Stevens case he joined an opinion saying that there should be no new categories.  Even if one thinks that flag desecration causes some constitutionally cognizable harm, is that harm substantially greater than the harm caused by the market for kitten-torture videos?  Doesn't this get things almost exactly backwards?

And where does that leave me?  Mostly ambivalent.  For reasons best expressed in Sherry's column on the Stevens case last August, I have mixed feelings about the case and the underlying statute.  On one hand, I am glad that so many of my fellow citizens were repulsed by the "crush videos" of animal torture that gave rise to the statute.  On the other hand, I wonder whether the demonization of deviant forms of animal torture by otherwise good people who knowingly create a demand for a very much larger industry of animal torture (i.e., the food industry) serves as a kind of salve: By pointing with disgust to the Michael Vicks of the world, American omnivores assure themselves that they occupy some sort of moral high ground.  Yet even if the people who demand crush videos because they are sadists are worse people (as I believe they are) for enjoying animal torture qua torture, the harms they inflict are not appreciably worse harms than the harms inflicted on animals raised for food to satisfy the demand of hundreds of millions of omnivores.

Thus, in my view, the Stevens case never offered much hope of a victory for any but a handful of arbitrarily chosen non-human animals.  Whether the Court's this-far-and-no-farther approach to unprotected categories should be regarded as a victory for freedom of speech is an open question.


Joe said...

Given that girls of 12 or younger were commonly married in colonial times, it would be nearly impossible to argue that the framers of the First Amendment thought sexualization of children was somehow beyond the pale.

Since 12 year olds were married, it was not beyond the pale to sell child pornography involving "children" of all ages? How so?

Of course, "obscenity" was traditionally much broader, surely involving the material in Ferber. For ADULTS.

The Court says that historical pedigree is the only basis for exceptions, even while making no effort whatsoever to explain the child porn exception--the one most closely analogous to the exception sought in Stevens--as rooted in history.

"speech integral to criminal conduct" was cited as a historical exception. It is explained how child porn meets that test. But, that was not "alone" the reason for the holding of Ferber.

This case was labeled as one "depicting" cruelty. As the opinion later notes: "nowhere requires that the depicted conduct be cruel." The "depiction" of child pornography is not per se barred. Ferber specifically noted the ability to "depict" without actually using minors is one reason actual child porn can be banned. Another case involved fantasy animation.

Finally, the ruling rests on the law being overboard. It leaves open the possibility that a narrowly tailored "crush video" law (including kittens) could be constitutional.

If the law actually covered this or even only actual cruelty (again, the ruling denied it did) it would be more akin to child porn.

Michael C. Dorf said...

Joe, let me respond briefly:

1) At the Founding, sexualization of people we now consider children was not deemed deviant, and so the whole predicate for a distinct category of "child pornography"--the idea that sexual conduct involving children is immoral--was absent. I agree that there were broader notions of obscenity at that time, but neither Miller nor Ferber says that the modern category of obscenity is as broad as the Founding-Era category of obscenity. The Court's jurisprudence in this area identifies traditionally proscribable categories and then gives them modern definitions. I'm contesting the claim that "child pornography" was a distinct proscribable category at the Founding.

2) And CJ Roberts does NOT make any effort to establish that "child porn" as such was a proscribable category at the Founding. That's why he tries to say, after setting forth his functional analysis, that the traditionally proscribable category of which child porn is a sub-category, is "speech or writing used as an integral part of conduct in violation of a valid criminal statute." But it's not at all clear why, if this is the category, "depictions of animal cruelty" don't fit it as well as "child porn."

3) My critique was aimed at the Court's rejection--in Part II of its opinion--of what it characterized (correctly) as "the Government's primary submission." Only after rejecting the notion that "depictions of cruelty to animals" may be categorically proscribable does the Court go on to employ its overbreadth analysis.

Shag from Brookline said...

So what, if any, part does originalism play in this decision or in Justice Alito's dissent?

As to this:

" If anything, the legalization of flag burning has made it less popular."

presumably this would not be the case for these animal torture depictions.

An unfortunate aspect of the Stevens decision is that some out there will associate or identify it with Justice Stevens due to his pending retirement rather than his dissent in the flag-burning case. Justice Holmes made a mistake in the Schenck case (in which the facts were quite distant from falsely yelling fire in a crowded theater) but it was long before his retirement and he sort of made amends a couple of years later.

Michael C. Dorf said...

1) Originalism of the old-fashioned framers'-expected-application variety plays very little role for the majority or the dissent. The newer original-public-understanding-abstract-principle kind of originalism could be said to play a role but only because in the domain of an area full of case law--as free speech doctrine is--constitutional construction, which takes over after interpretation runs out, is mostly what's at work. I suppose one could characterize the majority's faux insistence on "tradition" as the only basis for categorical exceptions to free speech as a kind of originalism, but as I say in the post, I don't find the application very persuasive.

2) Right, part of the appeal of flag burning, which is a form of political protest, is its illegality. People who get off on watching animal torture are not doing so as an act of political protest, so legalization should increase rather than decrease the prevalence of this material. Justice Alito warns about this.

3) There is very little risk that Justice Stevens will be remembered for the Stevens case. He didn't write it. He didn't even write separately. It's just a coincidence that the respondent and he share a relatively common surname.

4) I hope for his sake that Justice Stevens is NOT remembered for his Johnson dissent.

Joe said...

Thanks for the reply.

[1] There was an age of consent at the time of the Founding, wasn't there? Eight year olds weren't being married. Again, saying it was lower doesn't quite help me.

[2] He tied it to "speech integral to criminal conduct" generally. I didn't say he singled out child porn itself, so I'm unsure why "NOT" is responsive.

[3] You ignore a key point: there is not barrier to "depictions" of child porn. The word is italicized in the first part as well to separate it from actual animal cruelty.

Again, Ferber allows adult actors to "depict" underage sex. The virtual porn case cites cases where underage sex is "depicted" but not in fact done.

... anyway, since the case underlines a narrow crush video law might be legal, why isn't your kitten crush video citation misleading? A reader very well might understand that sort of thing is protected. The opinion leaves that question open.

Joe said...

Ashcroft v. Free Speech Coalition noted:

"By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber."


"The statute proscribes the visual depiction of an idea--that of teenagers engaging in sexual activity--that is a fact of modern society and has been a theme in art and literature throughout the ages."

The "depiction" of child sexual conduct was not held to fall under Ferber. The use of the word is essential in that Roberts cites laws that historically addressed actual harm to animals.

But, where "depiction" is different. Even if children are involved.

Michael C. Dorf said...


1) Actually, from what I've read, there may not have been a minimal age of consent in some colonies, although I haven't looked into it in detail. In any event, it would be anachronistic to refer to an age of "consent" because so many marriages--and especially the marriages of children--were arranged by parents without the consent of those getting married. But this is a tangential point anyway. CJ Roberts does not even attempt to say there was a traditional exception for child porn as such. He tries to squeeze child porn into a broader category of speech intimately connected to conduct. As I say in the post, I don't think it's a good fit.

2) I wasn't using all caps as a way of screaming, just for emphasis (since I can't figure out how to use italics in comments). I don't think we're disagreeing about anything in this point.

3) As used in the statute at issue in Stevens, I'm pretty sure "depict" would not apply to virtual crush videos. It defines "depict" as follows:
"the term ‘depiction of animal cruelty’ means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State."

At the very least, this language can sensibly be read not to apply to (the wholly hypothetical category) of virtual crush videos. Constitutional avoidance would do the job easily.

4) The Court says in the overbreadth portion of its opinion that it "need not and do[es] not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional." So yes, it's possible that some members of the majority would uphold a law targeting just that category. But its refusal to recognize such a category in Part II of the opinion casts doubt on how, exactly, it would uphold such a law.

5) Thanks for the interesting comments, everyone. I'll read any further ones with interest but no response: Too much other work!

SCOTUS Novice said...

Prof. Dorf --

The question before the court was essentially whether to entirely excise from First Amendment protection an entire category of speech. If this were any other instance, I feel, based on your previous writings, you would have rejected it out of hand. But because you are a vegan, love animals, etc. etc., and the like, like Justice Stevens in Johnson, you are letting your personal beliefs color a constitutional law issue that should be decided by dispassion and detachment (for an egregious example of deciding a primary issue primarily based on a a subsidiary one, see Justice Stevens's infensible opinion in Hill v. Colorado (or the other way around, it escapes me at the moment_ -- indeed one that can be settled by existing doctrine. Not only is this intellectually dishonest, but it is disappointing.

Michael C. Dorf said...

Shoo, your comment worries me, for it suggests that I must not be a very clear writer. Nowhere in my post did I say that I thought the case was wrongly decided. I said the majority opinion was "poorly reasoned" on the crucial question of how to distinguish Ferber. You say that "[t]he question before the court was essentially whether to entirely excise from First Amendment protection an entire category of speech." Indeed it was, but you fail to note that this would not have been the first time the Court would have done so or that the rationale it gave for excising child porn in Ferber was strikingly similar to the rationale offered by the govt in Stevens. If the Court thought that Ferber was a mistake it could have said so and either overruled it or adhered to it on stare decisis grounds alone, denying it any jurisgenerative force. The majority did neither, instead making the implausible claim that Ferber fit into a traditional exception. All of these things I tried to say clearly in the post, but your comment shows I must have failed in that endeavor.

So too your claim that I've let my heart control my head leads me to think I must not write very well. I thought I said at the end of the post that precisely because I am a vegan I am ambivalent about the underlying law in Stevens, which enables omnivores to point to the tiny phenomenon of crush videos while overlooking the enormous industry of animal torture which their food and clothing dollars support.

sean said...

It is simply not true, as a historical matter, that 12 year olds were commonly married in Colonial times. I am here at the office, pretending to practice law, so I can't get some citations from various social history works on marriage and the family, but I certainly defy the author to find a reputable source supporting this claim.

It is also not true that large numbers of marriages were "arranged" as that term would be understood today, i.e., that the older members of two families agreed that two young people would be married without said young people being consulted or having a say. However, "arranged" is less precisely defined than "12 years old," so perhaps reasonable minds can differ on that issue.

Michael C. Dorf said...

Sean: It depends on what one means by "common." The average marriage age for females in North American colonies was in the late teens, albeit with substantial variation. E.g., average age under 17 in parts of Maryland. See Table 1 of Haines, Long Term Marriage Patterns in the United States from Colonial Times to the Present. (If you have a site license, you can get this for free at Otherwise you have to pay $5.) However, girls were "commonly" married at substantially lower ages
(as indicated by the notion of an average), and got pregnant at still younger ages. See Laurel Thatcher Ulrich, A midwife's tale: the life of Martha Ballard, based on her diary, 1785-1812. My claim was not that most 12-year-olds got married but that it occurred often enough so that we can't attribute current attitudes about the sexualization of barely pubescent minors to the framers.

That was, in any event, a side point I made to prove something that didn't need proving: Namely, that the Stevens majority couldn't claim that there was a tradition of banning child porn. The Stevens majority doesn't try to make that claim and surely they would have made the claim if it were true.

The better argument against my position here (if that's your goal, as opposed to simply arguing about my stray historical claim) would be to say that the Framers accepted the banning of child porn as part of obscenity bans. But then I would counter that this doesn't do the needed work for the Stevens majority, because modern First Amendment doctrine is shot through with rules and principles that forbid laws that were common at the Founding.

But thanks for your comment. Your "defying" me to find a reliable source put me in touch with some interesting material.

Michael C. Dorf said...

Note another strong support for my historical point: the age of consent in 18th century England was 12. See Laurie Edelstein, An Accusation Easily to be Made? Rape and Malicioius Prosecution in Eighteenth-Century England, 42 Am. J. Leg. Hist. 351, 352 n.6 (1998). To my knowledge, none of the colonies raised it. Movements in American states to raise the age of consent arose in the mid to late 19th century. (I don't have a citation for that handy, but since Sean felt free to give me a research assignment, I'll give him the task of correcting me if I've got that wrong.)

Joe said...

This was cited by Richard Hasen today, so I am back. Thanks for the replies.

[1] I think the "12 year old married" thing is being shown to be not a great toss in. I still don't know why "it isn't a good fit." So be it. Anyway, I am quite willing to add Brennan's comment in his concurrence that the fact children were involved was a factor.

[2] I think there is some misunderstanding here, but I'll leave it be.

[3] The crushing could have been a result of "killing" -- let's say a mouse -- that wasn't for the purpose of sexual pleasure. The film, however, "depicts" it as if it was. See, e.g., a movie about animals starting today where real animals are "depicted" to do things they really did not.

[4] The basic point is that a video where a kitten was intentionally crushed for sexual fetishists -- clear animal cruelty the opinion said laws existed to fight for centuries -- is left open. The opinion underlines the law goes beyond this, much "illegal killing," e.g., not "cruel" at all.

[5] I don't respect a reply for the reasons you note, but some might come here via the link, so I wanted to respond.

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