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62 Alb. L. Rev. 183 (1998-1999)
Serial Killer Trading Cards and First Amendment Values: A Defense of Content-Based Regulation of Violent Expression

handle is hein.journals/albany62 and id is 197 raw text is: SERIAL KILLER TRADING CARDS AND FIRST AMENDMENT VALUES: A DEFENSE OF CONTENT- BASED REGULATION OF VIOLENT EXPRESSION Jendi Reiter* I. INTRODUCTION The ideal of neutrality is at the heart of modern First Amend- ment ideology. The prevailing assumption, reflected in both popu- lar debate and constitutional jurisprudence, is that core American values would be threatened if the government distinguished be- tween 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 be- come a firmly entrenched principle of American constitutional ju- risprudence. 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 dis- senter 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 princi- pled rhetoric of classical liberal free speech theory and the tawdry reality of the expression actually protected. In Eclipse Enterprises, * Senior Law Clerk to Justice Ernst H. Rosenberger, New York Supreme Court, Appellate Division, First Department. B.A., Harvard University, 1993; J.D., Columbia University School of Law, 1996.

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