2. Legal Arguments

When formulating alegal argument, a lawyer often attempts to show that his or her case is analogous to some preceding case that was decided in a favorable way. Accordingly, the lawyer will use an analogical argument with the favorably similar case as its primary analogue. If the lawyer is able to convince the court that his or her case is indeed most similar to this favorable case, then the rule of precedent suggests that the case under consideration should also be decided favorably. Of course, many cases involve multiple precedents, and some preceding cases may have been decided unfavorably (relative to the position that the lawyer wants to argue for). So, if an opposing argument is successful in convincing the court that the case under consideration is most similar to this less favorable precedent, then the lawyer's own argument will be weakened.

Consider the following case at trial, along with its relevant preceding cases (Preceding Case A and Preceding Case B). Use your knowledge of analogical reasoning and legal argument to answer the questions that follow.

Case at Trial:U.S. v. Stevens

Robert Stevens was convicted under 18 U.S.C. Section 48 in a Pennsylvania federal district court for "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." His conviction stems from an investigation into the selling of videos related to illegal dog fighting. Mr. Stevens appealed his conviction, arguing that 18 U.S.C. Section 48, on its face, was unconstitutional because it violated the Free Speech Clause of the First Amendment. In defense of his videos, Stevens' lawyers argued that the mere depiction of an illegal activity (such as dog fighting) does not in itself constitute an expression of advocacy for such activity, and Stevens produced witnesses (college professors) to attest to certain educational values associated with his materials.

Preceding Cases

Miller v. California

Marvin Miller, operator of one of the West Coast's largest mail-order businesses dealing in sexually explicit material, had conducted a mass-mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. He was found guilty in the Superior Court of Orange County, California (the state trial court), of having violated California Penal Code 311.2 (a), a misdemeanor, by knowingly distributing obscene material. The question that the court had to decide was: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? The Court ruled that "obscene material is not protected by the First Amendment," and devised a set of three criteria that must be met in order for a work to be legitimately subject to state regulation: (1) the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Cohen v. California

A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "[Expletive] THE DRAFT. STOP THE WAR." The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. The question posed to the court was: Did California's statute, prohibiting the display of offensive messages such as "[Expletive] the Draft," violate freedom of expression as protected by the First Amendment? The Court ruled that "absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense." The ruling goes on to argue that states cannot censor their citizens in order to make a "civil" society.

Imagine you are a lawyer in the case ofU.S. v. Stevensand you are arguingin support of Stevens.

Which of the cited cases would best serve as a primary analogue for your argument in support of Stevens?

Cohen v. California

Miller v. California

Given the preceding case that is most favorable to your position, which of the following facts from your case (U.S. v. Stevens) presents the most relevant similarity in support of your position?

That there will always be someone who disagrees about whether a particular expression is obscene

That no definition of obscenity is adequate

That whereas Stevens argues that his materials do have value beyond mere commercial gain, the state is unable to provide a positive account of why Stevens' work should be considered obscene

With respect to the opposing precedent, which of the following facts from your case (U.S. v. Stevens) is most damaging for your position?

That depictions of gratuitous animal cruelty, such as Stevens', are considered to "lack serious literary, artistic, political, or scientific value" by most people

That animals are innocent victims that should not be exploited

That many types of expression have been declared unprotected by the First Amendment