Serial killer trading cards and First Amendment values: a defense of content-based regulation of violent expression.

• Author: Reiter, Jendi

1. INTRODUCTION

   The ideal of neutrality is at the heart of modern First Amendment ideology. The prevailing assumption, reflected in both popular debate and constitutional jurisprudence, is that core American values would be threatened if the government distinguished between true and false, high-value and low-value, or socially useful and harmful expression. The desire to protect the expression of controversial views on important issues is largely responsible for the fact that a near-total ban on content-based regulation has become a firmly entrenched principle of American constitutional jurisprudence.

   However, the emergence of a mass media culture pervaded by images of violence creates new regulatory dilemmas which do not fit well within this traditional free speech paradigm. The new variety of dangerous speech differs from the old by promoting violence purely as amoral entertainment, rather than advocating an ideology which must not be barred from the public debate. In other words, neither the speakers nor the speech resemble the prototypical dissenter who offers a serious critique of the majority's beliefs, yet courts still invoke and apply legal principles and rhetoric based on that image.

   A recent case decided by the United States Court of Appeals for the Second Circuit exemplifies this mismatch between the principled rhetoric of classical liberal free speech theory and the tawdry reality of the expression actually protected. In Eclipse Enterprises, Inc. v. Gulotta,(1) plaintiffs manufactured several series of crime-related trading cards, including "serial killer" trading cards, featuring pictures or drawings of famous criminals and detailed information about their misdeeds.(2) Some cards in the series had a political focus, such as "Coup D'etat" (presenting theories about the Kennedy assassination) and "Friendly Dictators" (detailing U.S. support for authoritarian regimes), and were handled in a sensationalized, cartoonish manner.(3) Other series, like "Incredible True Life Murderers" and "Cold Blooded Killers," depicted and described in lurid detail serial killers whose crimes involved sexual perversion, rape, or cannibalism.(4)

   Concerned that these cards glamorized violent crime by encouraging children to view murderers on the same level as sports heroes, Nassau County passed a law which made it a misdemeanor to distribute the cards to minors.(5) The law attempted to regulate violent content in trading cards by analogy to obscenity. Pertinent provisions of the law were patterned after the U.S. Supreme Court's guidelines for the regulation of obscenity by replacing the Court's references to depiction of sexual conduct with references to depiction of violent crime.(6) Eclipse Enterprises successfully lodged a constitutional challenge against the county and county officials in the Eastern District of New York, and that decision was subsequently affirmed by the Second Circuit.(7)

   In First Amendment jurisprudence, laws which selectively impose burdens on some speech on the basis of the ideas or views expressed therein are content-based, whereas laws which impose burdens on speech without reference to the ideas or views expressed are content-neutral.(8) For example, a tax on all magazines is content-neutral, whereas a tax imposed only on political magazines is content-based. A tax imposed solely on left-wing political magazines is not only content-based but viewpoint-based, an even less permissible action. Unlike content-neutral laws, content-based laws are subject to the strictest constitutional scrutiny, meaning that the state must prove that the relation is narrowly tailored to promote a compelling governmental interest.(9)

   Constrained by precedent, the Eclipse Enterprises decision was correct legal reasoning but bad social policy. Harms caused by this type of violent expression cannot easily be prevented because the courts have repeatedly struck down content-based restrictions on speech.(10) Yet the most frequently advanced justifications for this legal principle, and for free speech generally--e.g., the search for truth, the process of democratic self-government, the slippery slope, or the value-neutral state--may lack relevance to the current problem. Those justifications need to be re-examined.

   This Article will evaluate the traditional philosophical rationales for the free speech policies underlying the Eclipse Enterprises holding, and discuss why they are inadequate to address the problem of mass-produced amoral violent expression.(11) This Article will then propose standards for content-based regulation of violent expression, by analogy to obscenity law, and will show that such a system allows suppression of the most dangerous and least valuable violent expression while preserving most of the values that current First Amendment jurisprudence tries to protect.(12)

2. THE REASONING OF ECLIPSE ENTERPRISES

   As noted above, legislatures are almost never permitted to define a category of less-protected speech on the basis of its content. It is rarely acknowledged that obscenity laws are actually an exception to this rule. The U.S. Supreme Court has glossed over this departure from its ideal of government neutrality on moral issues by drawing definitional boundaries.(13) Obscenity is simply "not within the area of constitutionally protected speech or press."(14) In essence, though, the decision to draw a definitional boundary line rests not on a neutral procedural judgment that obscenity is not speech, but on a substantive value judgment that obscenity is not worth protecting. "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."(15)

   A cursory examination of present day culture reveals that this type of content-based regulation has hardly led to wide-scale sexual repression or persecution of artists, at least since the U.S. Supreme Court formulated narrow guidelines for obscenity regulation in Miller v. California.(16) Under the Miller test, a work may be subject to state regulation where

   (a) ... "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) ... the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.(17) Under this test, offensiveness and prurience are defined according to local community standards, thereby safeguarding the nation's cultural and moral diversity and providing an exemption for any expression which has "serious literary, artistic, political, or scientific value."(18) What constitutional principle then stands in the way of a similar narrow exception allowing communities to regulate violent, hard core entertainment?

   Such was the reasoning of the Nassau County Board of Supervisors when it enacted Local Law 11-1992.(19) The law made it a misdemeanor to disseminate trading cards that depicted "heinous" crimes or criminals and were "harmful to minors."(20) "Heinous" crimes were defined by means of a list of serious felonies such as murder and rape.(21) The law's definition of "harmful to minors" was nearly identical to the Miller definition of obscenity, except that it applied to depictions of heinous crimes rather than sexual conduct and the standard was suitability for minors rather than for the general public.(22) Section 2(E) defined "Harmful to Minors" as:

   [A]ny description or representation in whatever form of a heinous crime, an element of a heinous crime, or a heinous criminal, when it: (1) Considered as a whole, appeals to the depraved interest of minors in crime; and (2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.(23) The Eclipse Enterprises court rejected the county's analogy between obscenity and depictions of violent crime.(24) Unlike obscenity, speech depicting acts of violence has never been among the categories of expression excluded from First Amendment protection.(25) The court then applied a strict scrutiny test to Local Law 11-1992 and concluded that the county's desire to prevent juvenile crime and ensure the proper moral development of its youth was a compelling state interest. It went on to state, however, that the law was not narrowly tailored to achieve that interest because the county had not presented sufficient proof that these cards caused juvenile crime.(26) Specifically, the county had presented only "contested studies concerning TV violence" and "conclusory and contradictory [expert] testimony," and had failed to point to any "studies or actual occurrences where crime trading cards were determined to be a factor in juvenile violence."(27)

   Finally, the Second Circuit seemed to adopt the district court's belief that the trading cards were not really harmful to minors, since they contained information on individuals and historical events which was available in libraries and they contained literary, artistic, and political value.(28) The court noted that the printed cards appeared relatively harmless when compared to the more vivid depictions of graphic violence on television, which were not subject to content-based regulation.(29)

   From this conclusion about the relative merit and danger of the trading cards, one gets the impression that no "proof" of a causal link between the cards and juvenile crime would have changed the result. This impression is strengthened by the reasoning of the cases cited in the district court's opinion in Eclipse Enterprises standing for the proposition that violent speech is fully...