Why I’m glad I didn’t go to law school

If the First Amendment protects the right to make a film of an (illegal) dogfight, because someone might want to do so in order to persuade people that dogfighting ought to be legal, then why doesn’t it protect the right to make a film of (illegal) sex with minors, since someone might want to do so in order to persuade people that sex with minors ought to be legal?

If the First Amendment protects the right to make a film of an (illegal) dogfight, because someone might want to do so in order to persuade people that dogfighting ought to be legal, then why doesn’t it protect the right to make a film of (illegal) sex with minors, since someone might want to do so in order to persuade people that sex with minors ought to be legal?

Dahlia Lithwick reports on the dogfight-film case.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

8 thoughts on “Why I’m glad I didn’t go to law school”

  1. I think it's got to do with some lingering distinction between malum prohibitum and malum in se offenses; If you witness the former, it's like, "Eh, so what.", if the latter it's, "Why the hell are you looking for the best camera angle when you should be calling the cops, if you aren't up to beating off the assailant yourself?"

    At least, if I were to try justifying it, that's the approach I'd take.

  2. There is an exception to the federal statute banning depictions of cruelty to animals that permits such depictions if they have "educational value."(*) The First Amendment problem: how can a judge neutrally apply that exception? Because the statutes banning child porn statute don't have that exception, the constitutional problem does not arise with respect to those statutes.

    (* The actual term is more comprehensive than "educational value" but I don't recall at the moment exactly what the terminology is.)

  3. The statute is 18 U.S.C. §48. Section (b) allows an exception for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

  4. Because, as Lithwick explains briefly and perhaps obliquely in a parenthetical, obscenity has always been held to be unprotected by the first amendment and therefore laws outlawing obscene materials are not subject to first amendment challenge. (Most non-fetishistic pornography is not, under modern first amendment analysis, 'obscene' and therefore is protected speech under the 1st a.)

  5. It gets better. Catherine MacKinnon argued that pornography–including child pornography–was a constitutive part of the discourse of male dominance. If you accept this, she has just proven that it is core political speech, deserving extra protection under the First Amendment. But for some reason, she took it as an argument for banning porn.

    This kind of idiocy just shows why when I hear of the First Amendment, I reach for my revolver.

    (Bloix–we seem to comment on all the same blogs.)

  6. Joe, not only do you misstate Professor MacKinnon's claim — which was not about "discourse" — but you also misspell her first name, which is "Catharine." Her argument for declaring pornography legally to be a civil rights violation is certainly highly controversial and disputable, but it is not stupid. Nothing she has ever written is stupid, far from it. As a result, none of her work is capable of being dismissed in a sentence.

  7. Two attempts have been made to film Nabokov's Lolita. Neither of course have really been or could possibly be authentic; for the actresses, Sue Lyon and Dominique Swain, were young adult women portraying a girl past puberty. So the story becomes one about a man's commonplace infatuation with a woman under legal age, not a far more disturbing love for a child.

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