Cute Widdle Kitties: Cute, But Not Cuter Than First Amendment

Print This Post

You may also like...

7 Responses

  1. Drew says:

    What is your take on the carve out for the sale of child pornography involving real children?

  2. Ken says:

    Drew, my take is that the carve-out for child porn is different than the type of carve-out the government is advocating here. As SCOTUS makes clear in this opinion, the child-porn carve out was justified using traditional strict scrutiny analysis applicable when a statute purports to regulate speech — the Court found a compelling state interest in protecting children from exploitation and, given the inextricable link between child porn and exploitation of children, found that the law was narrowly tailored. It didn't, as the government wants to, simply cheat at say that an entire category of speech was "low value" and therefore did not require strict scrutiny analysis.

    It's possible that some law banning trafficking in crush videos could survive strict scrutiny analysis.

  3. Little Raven says:

    WTF was Alito thinking? Is he really just a lapdog for executive power?

  4. Charles says:

    Because Ken was first, I felt it was unfair that Patrick was getting all of the comments. Alito's opinion had a few elements: 1) where an as-applied challenge is sufficient to decide a case, don't reach out for a constitutional issue; 2) crush videos are clearly not protected by the First Amendment and 3) dogfighting videos are arguably not protected by the First Amendment, analogizing the cruelty and exploitation of dogfighting to kiddie porn. Alito would have remanded for a hearing on whether dogfighting videos are protected speech. If not, this case made a poor choice, in his mind, of deciding a facial challenge.

  5. Bill says:

    The Supreme Court got this right only because the law was poorly drafted to be all-encompassing, and not narrowly tailored to "crush videos" or dog fighting videos. The government's promise not to enforce it against the makers of fishing videos and videos depicting other generally lawful activity did not hold water.

    Alito's dissent would have been correct if it involved anything other than the First Amendment. Normally, a challenger to the constitutionality of a statute must show that the statute is unconstitutional as applied to him. First Amendment jurisprudence, however, is different. An overbroad statute will be struck down even if the acts charged would pass constitutional muster if the statute were narrowly drafted.

    Narrowly tailoring such a statute presents problems, but can be done. If the underlying activity is legal in The State of Confusion, but illegal in The State of Shock, would prosecution for having videos filmed in Confusion, but possesed in Shock be unconstitutional?

    Another problem in narrowly tailoring such a statute is placing the burden of proof on the prosecutor to show that the video depicts real acts (not synthespian computer generated video).

    I believe that a statute that outlawed possession of video depictions of specifically identifiable acts may be OK.

  1. April 20, 2010

    […] See what I get for being out and about all day and not making the blog rounds? Both Patrick and Ken over at Popehat are on the Supreme Court decision like…something that's on something a […]

  2. April 21, 2010

    […] Ken at Popehat, Ilya Shapiro at Cato at Liberty, and Eugene Volokh in several posts. Our earlier coverage is […]