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

I. 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...