Thursday, July 24, 2008

U.S. v. Stevens: Violence good, prurience bad

As I mentioned, the Third Circuit this week in United States v. Stevens (PDF) held that a federal law, 18 U.S.C. Section 48, that criminalizes the sale of depictions of animal cruelty, violates the First Amendment. The court refused to treat depictions of animal cruelty as a category of unprotected speech.

Why? The court stated a lot of reasons, but I think it comes down to this: there's no sex. This is, as the court put it, "non-prurient" speech, and the same reasons that have been invoked to ban sexual speech can't be applied to ban this sort of speech, which is about depictions of cruelty with no sexual element.

The court even suggested that the statute would have been unconstitutional had Congress limited its scope to depictions of animal cruelty with sexual elements. It noted that the original impetus for the law was concern about "crush videos," a purported fetish genre in which leggy women crush small animals beneath their heels. The court quotes a House report: "In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter." The court essentially faults Congress for deviating (so to speak) from this narrow focus to a "broader focus on animal cruelty."

And while the court states some other reasons why this change in focus makes a difference, ultimately it comes down to this: the First Amendment, as construed by the courts, treats sexual speech differently and much less favorably than nonsexual speech, however objectionable it may be. The court specifically notes that the defendant in this case was not accused of producing "crush videos" but rather videos of dog fights. The opinion seems strongly to imply that if Stevens's dog fight videos had but included "a kind of dominatrix patter," sending him to jail would have been just fine.

And this is what is so insane about obscenity. To my mind, there is no compelling difference between criminalizing the distribution of depictions of child sexual abuse, and criminalizing the distribution of depictions of serious physical - but not sexual - child abuse. The fact is that we're talking about marketing a crime. The analogy between this and dog-fighting videos may or may not be sound, but the sexual element shouldn't make the difference. That it does so signals a basic fear and loathing of sexuality, above and beyond violence, at the core of our obscenity doctrine, which allows the criminalization of depictions of perfectly legal activities.

There is, of course, more to the decision:

The Government in this case argued that the law was closely analogous to those banning child pornography, and should be upheld for basically the same reasons. At face value, it would seem that some of the key justifications for banning child pornography apply to depictions of animal cruelty: the material at issue depicts criminal conduct that society has an interest in deterring, and the market of depictions of such cruelty creates an incentive for cruel acts. A key difference is that unlike child pornography, it cannot be said that the very distribution of such materials re-victimizes the animals that experience that cruelty. (Aside from the obvious reasons, the animals rarely survive.)

The court rejected this analogy, and ultimately I think its conclusion came down to this, the opening of the opinion:
The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years.
In other words, this would be a significant innovation in First Amendment law, and we're not going to be the ones to make it, however good the arguments.

The court said a lot more than this, but most of what it said was pretty mushy. Aside from the distinction I've drawn above with child pornography, the court said this:
Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.
While most people would probably agree, the court admits that where the "compelling" cutoff lies "has not always been crystal clear." For the court, it comes down to this: the precedents generally concern the interests of humans. (The court tries to ground this distinction in a Free Exercise decision [Church of the Lukumi Babalu Aye v. City of Hialeah] that protected a religious group's right to sacrifice animals, but that case seems inapposite: there the Supreme Court didn't so much say preventing animal cruelty wasn't a compelling interest as it said that the government couldn't permit animal killings for most reasons but ban it when done for religious reasons.)

The court also found lacking the animal-cruelty statute's exception for works with "serious religious, political, scientific, educational, journalistic, historical, or artistic value." The difference is that with obscenity the work must be "taken as a whole," whereas the animal-cruelty law had no such restriction.

Beyond that shortcoming, however, the court sees another problem that I think is very telling. It notes that this type of exceptions clause has never been applied to "
non-prurient" speech, and that "outside of patently offensive speech that appeals to the prurient interest, the First Amendment does not require speech to have serious value in order for it to fall under the First Amendment umbrella." So we're back to the prurient/non-prurient distinction.

This case, like the FCC nipple case, and the Child Online Protection Act case, is almost certainly destined for the Supreme Court, since a federal statute has been declared invalid. As with previous cases concerning the boundaries of the First Amendment, it's very unlikely the Court will reconsider any of the basic problems with its decisions on obscenity and indecency, but it will surely be an interesting ride.

Tuesday, July 22, 2008

Three important First Amendment decisions

The Third Circuit Court of Appeals issued three important First Amendment cases this week, at least one of which I will discuss further this week.

ACLU v. Mukasey (PDF): Holding that the Child Online Protection Act facially violates the First and Fifth Amendments. The trial on the constitutionality of COPA in 2006 was a fascinating episode in the annals of First Amendment history- check out's blog of the trial. Mark Regazza Marc Randazza has a (highly opinionated as always) rundown of the decision at the Legal Satyricon.

CBS v. FCC (PDF): Holding that the FCC's abrupt rule change, used to fine CBS for its Super Bowel Bowl "wardrobe malfunction" was arbitrary and capricious because it treated fleeting 'indecent' images in live broadcasts more harshly than fleeting verbal expletives.

U.S. v. Stevens: (PDF): Striking down a federal law criminalizing the sale of depictions of animal cruelty, and voiding the conviction of a distributor of dog-fight videos. The Government unsuccessfully defended this law as closely analogous to laws against child pornography.

Friday, July 18, 2008

Sex is a "major life activity" under the ADA

Joining the Ninth Circuit, the D.C. Circuit today holds that sex is a "major life activity" for purposes of the Americans with Disabilities Act. (Well, technically the Rehabilitation Act, but the two laws overlap almost completely.) The Act defines a "disability" as "a physical or mental impairment which substantially limits one or more . . . major life activities" - a standard plaintiffs must meet to make a disability discrimination claim. The Supreme Court held that reproduction is a major life activity in Bragdon v. Abbott (1998) (which also recognized that asymptomatic HIV may qualify as a "disability").

The D.C. Circuit's decision says:

Based on the statute’s text, the Supreme Court’s reasoning in Bragdon, and a hefty dose of common sense, we hold that engaging in sexual relations qualifies as a major life activity under the Act.

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an “activity” in any sense of that word. As for the word “major,” the Supreme Court has explained that “the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.” Id. (internal quotation marks omitted). At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to “be fruitful and multiply.” Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a “major” life activity.

Yes, that's right, the court just cited the Book of Genesis as an authority on the importance of sex!

The court says that the State Department didn't dispute this point, but the dissent notes the Government's position was narrower than the court's: it argued that sex "can" qualify as a major life activity "to the [extent] that procreation may be limited." So we're back at Genesis: it's only really the fruitful multiplying that matters. Unfortunately, given the court's language, the decision could easily be interpreted as stating that narrow, heterosexist position.

Today's decision, Adams v. Rice (PDF), concerns a woman who suffered from breast cancer and was denied an overseas post with the State Department, even though (allegedly) treatment had rendered her cancer-free. Adams argued that she was disabled in part because her treatment had deleterious effects on her sex life. In an affidavit she said:
Like many breast cancer survivors, whether by virtue of my discomfort with the way my body looks, loss of sensation after my surgeries, my deep-seated fear that prospective suitors will reject me because of my history of cancer, loss of a breast, and current physical appearance, or the side effects of medication that causes loss of libido, I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease, my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.
For whatever reason - and to my mind surprisingly, but happily - the State Department did not dispute the allegation that Adams's sex life was substantially limited. So the court was not called upon to determine whether the impact of disablism - which is, it seems to me, among the reasons Adams is saying her sex life has been limiting - can be part of the "substantial limitation" analysis. But as the court pointed out, the jury will ultimately make this fact determination. One imagines that the State Department's cross examination of Ms. Adams could get pretty ugly.

Also of interest, the Government argued that its treatment of Adams on account of her cancer wasn't illegal because, well, how were they supposed to know Adams wasn't getting laid, and therefore was disabled? The court rightly rejected this argument.

The dissent seems to say that Adams has not produced evidence of a disability because a) she has not been clear about when her sex troubles started, and b) her real problem is her man-repelling mastectomy, not the cancer itself.