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.