STEVENS AND LOW VALUE METHODOLOGY

18 U.S.C. § 48(a): bars the knowing creation, sale, possession or depiction of animal cruelty “with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” 18 U.S.C. § 48(c)(1) - “animal cruelty” = any visual or

auditory depiction 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.”

18 U.S.C. § 48(b) – exempted “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

Does this statute regulate “low value” speech? Does it fall within existing categories? Note relationship

to obscenity. How do we create new categories? Chaplinsky approach?

After Stevens?

REVISED LAW AFTER STEVENS – BETTER?

(a) Definition. [T]he term “animal crush video” means any photograph, motion-picture film, video or digital recording, or electronic image that (1) depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury (as defined elsewhere) … and (2) is obscene.

(b) Prohibitions.--(1) Creation of animal crush videos.--It shall be unlawful for any person to knowingly create an animal crush video, if--

(A) the person intends or has reason to know that the animal crush video will be distributed in, or using a means or facility of, interstate or foreign commerce; or

(B) the animal crush video is distributed in, or using a means or facility of, interstate or foreign commerce.

(2) Distribution of animal crush videos.--It shall be unlawful for any person to knowingly sell, market, advertise, exchange, or distribute an animal crush video in, or using a means or facility of, interstate or foreign commerce.

(e)Exceptions – [Law doesn’t apply to normal slaughter of animals, hunting, trapping, fishing or normal vet practices …]

NEW TOPIC: CONTENT-BASED RESTRICTIONS OF HIGH VALUE SPEECH

Have been discussing low value categories of speech – all of which involve laws that impose content-based restrictions (i.e., they regulate speech based on what the speaker is saying).

SCT has few problems with these restrictions if speech is truly low value (although the laws must meet the reqm’ts established for each category of low value speech)

But in Brown SCT clearly views content-based restrictions of speech with suspicion.

So what’s going on?

Brown involved “high value” speech

CONTENT-BASED RESTRICTIONS: SCT’S TWO-TIERED APPROACH

Low Value Speech: SCT in Stevens indicated that the only methodology it was looking to there was “history and “tradition” Threats, Fighting Words, Incitement, Libel, Obscenity, Child

Pornography, Fraud (Comm’l Speech), Speech Integral to Criminal Conduct

High Value Speech: Speech that is not low value speech – i.e., somehow

contributes to public discourse

Content-based restrictions are subject to strict scrutiny (law must be necessary to meet a compelling state interest)

Content-neutral restrictions subject to intermediate scrutiny (law must be narrowly drawn to meet important state interest and leave open ample alternatives of communication)

BROWN V. EMA – THE STATUTE

Cal. Civ. Code § 1746.1(a): A person may not sell or rent a video game that has been labeled as a violent video game to a minor.

Cal. Civ. Code § 1746.1(d)(1)(A): “Violent video game” means a video game [where the options] available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that . . . Comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

How does the act regulate speech based upon its content?

BROWN V. EMA – THE LOW VALUE SPEECH ISSUE

Note how majority first looks to see if statute regulates low value speech:

Does it regulate speech within an existing category?

Note Court reiterates Stevens – absent some sort of “long (if heretofore unrecognized) tradition of proscription,” legislature cannot regulate as “low value” [p. 101].

Is there a different “tradition” to look to in order to support creation of a low value category?

What about Justice Thomas’s dissent arguing that parents have had control over who spoke to their children?

If there is a tradition of protecting children from certain kinds of speech (like sexual speech), why can’t we protect them from violence?