Question about United States v. Stevens

Robert Sheridan rs at robertsheridan.com
Thu Apr 22 10:01:16 PDT 2010


Perhaps this is an example of the Court employing the constructive 
device of creative ambiguity, i.e. leaving it to the reader to figure 
out the possible examples.  The variety of communication contexts and 
techniques is much broader than a few examples could convey, and by 
implication, possibly limit.  By leaving open-ended what 'overbroad' 
means, the reader can 'fill in the blanks' in our Constitution (to coin 
a phrase). 

rs

Humbach, Prof. John A. wrote:
> Something seems missing from the Stevens case, just decided.
>
> The Court held that the statute was "overbroad," but it did not actually explain why any of the statute's applications would be invalid. Instead, it seemed to simply assume that some "animal cruelty" depictions (e.g., hunting videos) would be protected by the First Amendment. 
>
> Specifically, in declaring overbreadth the Court seemingly just assumed that the statute would be unconstitutional as applied to material other than "crush videos and animal fighting," noting that the government did not even argue the point. 
>
> This omission is no mere failure of advocacy, I believe, because a number of the amici asserted vigorously that there is a "compelling" interest in preventing animal cruelty, and that the statute's broad ban on the sale and possession of cruelty depictions is a necessary and narrowly tailored measure to serve that compelling interest.
>
> While I am personally happy with the pro-expression stance that the Court took in Stevens, I don't understand how a court can declare a statute to be overbroad without identifying one or more invalid applications and indicating what makes them invalid. This is especially so when the supposed invalidity of the "overbreadth" applications is a contested point in the case.
>
> Anybody have any thoughts?
>
> John A. Humbach, Professor of Law 
> Pace University School of Law 
> 78 North Broadway 
> White Plains, New York 10603 
> Tel. 914-422-4239  -- jhumbach at law.pace.edu 
> personal homepage: humbach.net
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