§ 9.11 SOCIAL HARM: CONSTITUTIONAL LIMITS

• Jurisdiction: North Carolina

§ 9.11. Social Harm: Constitutional Limits

May a legislature punish anything it chooses? May it say that "X" is a social harm and, therefore, it is a crime to "intentionally do X"? What if "X" is, for example, driving one's automobile? Or, reading the New York Times? Or watching Fox News?

Various constitutional provisions limit the extent to which a legislature may properly prohibit socially harmful conduct. For example, the Supreme Court has held that the First Amendment bars a legislature from making it a crime for a person to place on her property a Nazi swastika, or other symbol that the actor should know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender"¹⁴⁷; similarly, the First Amendment bars the criminalization of possession of videos depicting animal cruelty.¹⁴⁸ The Court is not suggesting by this that there is no harm to society in such circumstances, but rather is asserting that constitutional rights—here, freedom of speech—outweigh the society's interest in preventing this social harm in the manner chosen by the legislature.

The Supreme Court has also stated that constitutionally protected liberty "presumes an autonomy of self that includes . . . certain intimate conduct."¹⁴⁹ As a consequence, the high court has invalidated laws that prohibit physicians from dispensing contraceptive information to married and unmarried persons,¹⁵⁰ and adults from possessing obscene literature in their homes,¹⁵¹ or engaging in intimate consensual sexual conduct.¹⁵²

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Notes:

^[147] . R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).

^[148] . United States v. Stevens, 130 S. Ct. 1577 (2010) (limited to statutes that depict cruelty, as distinguished from statutes that prohibit the cruelty itself).

^[149] . Lawrence v. Texas, 539 U.S. 558, 562 (2003).

^[150] . Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).

^[151] . Stanley v. Georgia, 394 U.S. 557 (1969).

^[152] . Lawrence v. Texas, 539 U.S. 558 (2003) (constitutionally protecting consensual same-sex adult sexual conduct).