Charles W. "Rocky" Rhodes on The Historical Approach to Unprotected Speech and the Quantitative Analysis of Overbreadth in United States v. Stevens, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010)

Charles W. "Rocky" Rhodes on The Historical Approach to Unprotected Speech and the Quantitative Analysis of Overbreadth in United States v. Stevens, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010)

“United States v. Stevens, __ U.S. __, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010), very well could be one of the two most doctrinally significant constitutional opinions of the Supreme Court's October 2009 Term,” writes Charles W. Rhodes. “Its significant holdings include employing a "longstanding traditions" approach to First Amendment analysis and providing additional guidance on the First Amendment overbreadth doctrine. Unless overruled, modified, or subsequently ignored, its impact should be felt for decades to come.”

“The case addressed Stevens' challenge on free speech grounds to his federal conviction for selling dog fight videos in violation of a congressional statute criminalizing the commercial creation, sale, or possession of certain depictions of animal cruelty,” explains Professor Rhodes. “Stevens maintained that the statute's prohibition on portrayals of acts of animal cruelty was facially invalid and substantially overbroad under the First Amendment. The government responded that, as a class, depictions of animal cruelty were categorically unprotected by the First Amendment because the value of such speech was minimal compared to its societal costs. But the Supreme Court rejected the government's proposed balancing test, instead reasoning that, for a category of speech to be unprotected by the First Amendment, there must be a longstanding historical tradition of excluding such speech from the free expression guarantee. Because there was not a First Amendment tradition of prohibiting portrayals of animal cruelty (even though the underlying acts of cruelty have long been outlawed), depictions of animal cruelty were not one of those classes of speech–like obscenity, fraud, or incitement–outside the reach of the First Amendment. The Court further held that, due to the breadth of the statute's text as construed, its impermissible applications far outnumbered the permissible ones, mandating its invalidity under the substantial overbreadth doctrine.”

Two important First Amendment doctrines, then, were at issue in Stevens: unprotected speech categories and overbreadth. Professor Rhodes provides background regarding both of these doctrines and then discusses in more detail the Stevens holding.

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   Charles W. "Rocky" Rhodes is the Godwin Ronquillo PC Research Professor and Professor of Law at South Texas College of Law, where he teaches Constitutional Law, First Amendment Law, Civil Procedure, State Constitutional Law, and Complex Litigation. He is the co-author of two LexisNexis textbooks on constitutional law, Cases and Materials on Constitutional Law and Skills & Values: The First Amendment, and the author of more than fifteen articles and book chapters on a wide variety of constitutional and procedural issues. He is a frequent media commentator, including television and radio appearances on CNN, NPR's Morning Edition, BBC Radio's World Business News, NPR's Day to Day, and Bloomberg Radio, along with interviews in newspapers and magazines across the United States, such as the Washington Post, USA Today, American Lawyer, Dallas Morning News, Washington Times, ABA Journal, Christian Science Monitor, and Houston Chronicle. He earned his undergraduate degree summa cum laude while on a National Merit Scholarship at Baylor University before enrolling at Baylor Law School, where he was Editor-in-Chief of the Baylor Law Review, the President's Award recipient as the outstanding third-year student, and valedictorian of his graduating law school class. Before becoming a professor, he served as a briefing and staff attorney at the Supreme Court of Texas, practiced appellate law at a national law firm, and earned his board certification in Civil Appellate Law by the Texas Board of Legal Specialization. Access Charles Rhodes Martindale-Hubbell profile at martindale.com.

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