Stevens and the Social Funnel

The US Supreme court decision in 08-769 United States v. Stevens 559 U.S. ___ (2010) (via Balkinization) may shed light on additional issues regarding free speech. Stevens, was more than any other thing, a decision which ruled that 18 USC 48, a clause that ordered that anyone who knowingly creates, sells, or possesses a depiction of animal cruelty, if done for commercial gain, may face five years imprisonment if the work does not have “serious religious, political, scientific, educational, journalistic, historical, or artistic value”. Stevens was an owner of a website that published and sold movies of dog fights, which were filmed where and when dog fights were legal (f.e japan) and sold them throughout the United States. When indicted, Stevens claimed that 18 USC 48 was not narrowly tailored and should be void.

The Supreme court accepted Stevens’ request, and explained, in part, that where animal cruelty may be defined differently in different jurisdictions, it causes the law to prohibit publishing or displaying legal activity, such as hunting, and “A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful” and “Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions“.

Moreover, the court addresses the issue of the exemption, which allows the publication for serious religious, political, scientific, educational, journalistic, historical, or artistic value, and explained that “Most of what we say to one another lacks “religious, political, scientific, educational, journalistic, historical, or artistic value” (let alone serious value), but it is still sheltered from government regulation” and that “The Government’s attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause“.

Calling such clause invalid by the court, more than any other thing, may shed light on Israel’s attempted Censorship Bill, drafted by Parliament Member Amnon Cohen during the 2006 term. Cohen offered that all ISPs shall be mandated to block all websites that may be inappropriate to minors, including “displaying sexual relations with violence, torture, degrading nature, humiliation or abuse”, “displaying sex with a minor or a person pretending to be a minor”, or “displaying a man, or any of his organs, as a sexual object”, all when “the content in the said sites lack, distinctly, artistic, scientific, journalistic, educational or instructional value“.

The similarity between the clauses is not coincidental, The Ministry of Communication’s attempt was to legislate the act in accordance with the Israel’s supreme court decision in re Playboy (HCJ 5432/03 Shin v. The Council for Cable and Satellite Broadcast). However, the Court’s ruling that such clause, even when exempting publications with social values, is not tailored to fit the constitutional funnel, may allow us some more hope when others try to engage in censoring the Israeli web.

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