… I Hate People

 Posted on September 03,2018 in Uncategorized

This weekend my kid and I took a machining class, learning the basics of running a milling machine. The instructor, a Greenfield-grade curmudgeon, had several stories of people using his machines incompetently and breaking things. The stories all ended, "and that's why I hate people."

Last Friday the Vermont Supreme Court in State v. Vanburen held that state's revenge-porn statute constitutional. Eric Goldman has a good first analysis of the opinion.

The court found, correctly, "that ‘revenge porn' does not fallwithin an established categorical exception to full First Amendment protection," and declined, correctly, "to predict that the U.S. Supreme Court would recognize a new category." So the statute is unconstitutional, right?

No: "However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard."

The Supreme Court's application of the strict-scrutiny statute has not been entirely consistent even since the new era of categorical analysis began with U.S. Stevens.

In Williams-Yulee v. Florida Bar the Court performed the same series of operations that the Vermont court performed in Vanburen: it found that the speech fell into no recognized category of historically unprotected speech, and then did a purported strict-scrutiny analysis and found the restriction (there, on judicial campaign advertising) constitutional.

The purported application of strict scrutiny in Williams-Yulee was the opinion of only the four-justice plurality, not the voice of the court. Justice Ginsburg concurred with the lead opinion, but would have applied lesser scrutiny. Four justices dissented.

Williams-Yulee is not a modification or rejection of the rule in Stevens, Alvarez, and Brown. As Justice Scalia wrote in the primary dissent, the Court in Williams-Yulee "purports to reach this destination by applying strict scrutiny, but it would be more accurate to say that it does so by applying the appearance of strict scrutiny." Williams-Yulee is a special case, a carving-out from the usual protection of the First Amendment of speech that judges view as bringing dishonor on their own kind:

It is no great mystery what is going on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is-but so too are preventing animal torture [as in U.S. v. Stevens], protecting the innocence of children [as in Brown v Entm't Merchants Ass'n], and honoring valiant soldiers [as in U.S. v. Alvarez]. The Court did not relax the Constitution's guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.Scalia, J., dissenting in Williams-Yulee.

The really interesting First Amendment question raised here is how overbreadth and strict scrutiny interplay. It is becoming increasingly indisputable that revenge-porn statutes restrict a real and substantial amount of protected speech, and so are overbroad.

It literally only affects protected speech.- Andrew Fleischman (@ASFleischman) September 3, 2018

To pass strict scrutiny, a restriction must be narrowly tailored. It is logically impossible for a statute to be both overbroad and narrowly tailored. Strict scrutiny and overbreadth are not separate analyses. If a content-based restriction is substantially overbroad-if it restricts a real and substantial amount of constitutionally protected speech-it is ipso facto not narrowly tailored, and it fails strict scrutiny.

The strict-scrutiny analysis of Williams-Yulee and the overbreadth analysis of Stevens cannot coexist because under Stevens the substantial overbreadth of the statute ends all analysis, and under Williams-Yulee the strict-scrutiny analysis somehow begins there.

So what did the Vermont Supreme Court say about overbreadth? How did the Green Mountain State's high court resolve the tension between Stevens and Williams-Yulee? What guidance does Justice Robinson's opinion give to other courts that might be considering how strict scrutiny and overbreadth interrelate? What did the three other justices joining the opinion have to say about how an overbroad statute can be narrowly tailored?

Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review. State v. Vanburen

And that's why...