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Havard Journal of Law and Public Policy HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 41, NUMBER 2 SPRING 2018 FOREWORD A FOUNDER’S REFLECTION’S REFLECTIONS: THE JOURNAL AT FORTY YEARS E. Spencer Abraham ................................................................ 443 ARTICLES PROLEGOMENON ON PORNOGRAPHY Gerard V. Bradley .................................................................... 447 PORNOGRAPHY, THE RULE OF LAW, AND CONSTITUTIONAL MYTHOLOGY David L. Tubbs & Jacqueline S. Smith .................................... 499 THE INDECENCY AND INJUSTICE OF SECTION 230 OF THE COMMUNICATIONS DECENCY ACT Mary Graw Leary .................................................................... 553 ESSAY EFFORTS TO STOP HUMAN TRAFFICKING Beth A. Williams ...................................................................... 623 BOOK REVIEW SCALIA BEING SCALIA: SCALIA SPEAKS Paul D. Clement ...................................................................... 631 NOTES NONCOMPLIANT INSANITY: DOES IT FIT WITHIN INSANITY? George Maliha .......................................................................... 647 TRUMP’S TRAVEL BAN: LAWFUL BUT ILL-ADVISED Jennifer Lee Barrow ................................................................. 691 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief JOSHUA J. CRADDOCK Deputy Editor-in-Chief Articles Editors TIERNAN KANE Managing Editors JENNIFER BARROW ANNE BROWN BOYD GARRIOTT STEPHEN J. HAMMER Executive Editors JENNIFER BARROW Assistant Articles Editors KATHRYN BOLAS Deputy Managing Editors NOAH HEINZ MATTHEW BURTON BRAD BARBER DANIEL JOHNSON BOYD GARRIOTT WILL COURTNEY JASON HALLIGAN KELSEY CURTIS Articles Board FRANCES MANZO RYAN PROCTOR ANNIKA BOONE MATTHEW REARDON CASEY CONNOLLY KYLE REYNOLDS Chief Financial Officer HAYLEY EVANS ASHER PEREZ BRANTON NESTOR Events Manager ANNIKA BOONE Subscriptions Manager Notes Editors NICK AQUART CHADWICK HARPER Technology Manager KYLE REYNOLDS R.J. MCVEIGH Communications Editor SAMUEL SETTLE Senior Editors ANNIKA BOONE CHANSLOR GALLENSTEIN AZFER ALI KHAN JEREMY SAWYER CASEY CONNOLLY YULIYA GEVRENOVA PARKER W. KNIGHT III KEES THOMPSON HAYLEY EVANS JORDAN GREENE KUNDHAVI SURESH KUMAR SAM WILLIAMS RYAN FOLIO CHADWICK HARPER BRANTON NESTOR SARAH ZHANG VERONICA FULTON DANIEL JOHNSON GRANT NEWMAN Editors NICOLE BAADE ANASTASIA FRANE R.J. MCVEIGH DOUG STEPHENS IV REX BRAY TERRENCE L. GEORGE JOHN MITZEL STEVE SZROM CHASE BROWNDORF AARON GYDE DAVID NABORS JACOB THACKSTON ALEX CAVE JOSHUA HA FELIPE PINTO MATTHEW WEINSTEIN DOUGLAS COLBY AARON HSU JASJAAP SIDHU KUBA WISNIEWSKI HUGH DANILACK JOE KURTENBACH ANDREW SKARAS YI YUAN BEN FLESHMAN ISABEL MARIN DYLAN SOARES NICHOLAS ZAHORODNY ZHUORAN ZHONG Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Mas- sachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are re- newed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably pre- pared using Microsoft Word. Views expressed are those of the authors and do not nec- essarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2018 by the Harvard Society for Law & Public Policy, Inc. PREFACE Hugh Hefner’s death last September left many pondering the legacy of the sexual revolution. What type of society had the Playboy-fueled project of sexual liberation created? The hurri- cane of sexual assault allegations that arose the following month—broadly characterized as the #MeToo movement— provided a dismal answer to that question. Tired of the har- assment and misconduct of sexually entitled men, it seems women from Hollywood to Houston have finally had enough. In the midst of this reassessment of sexual mores, the ubiqui- ty of pornography and the objectifying habits of the mind that it creates cannot be ignored. Several state legislatures— including those in Florida, Kansas, Idaho, and Utah—have la- beled unrestricted access to internet pornography a “public health crisis.” The call to ban pornography altogether even re- sounded across the pages of the New York Times.1 The Articles selected for this Issue of the Journal charge head- long into this timely and long-overdue conversation. Professor Gerard V. Bradley surveys our pornified culture and calls for the establishment of a new federal commission to evaluate the effects of unrestricted pornography on our cultural well-being. Dr. David L. Tubbs and Jacqueline Smith explain why the Su- preme Court’s unstable obscenity jurisprudence undermines the rule of law, and debunk the constitutional mythology fa- voring pornographers. Finally, Professor Mary G. Leary re- views how courts distorted the Communications Decency Act so as to grant immunity to websites that advertise sex- trafficking victims. She also discusses the value and limitations of Congress’s recently enacted FOSTA-SESTA legislation. We are also privileged to present an important policy Essay on the matter of human trafficking that complements the themes raised in Professor Leary’s Article. Assistant Attorney General Beth A. Williams outlines the Department of Justice’s approach to combatting human trafficking, and identifies some the Department’s most successful efforts. 1. Ross Douthat, Opinion, Let’s Ban Porn, N.Y. TIMES (Feb. 10, 2018), https://nyti.ms/2BlOrNY. No. 2] Preface ii Two special features in this Issue provide welcome respite from the difficult discussion of pornography and sex traffick- ing. First, this spring marks the fortieth anniversary of the founding of the Harvard Journal of Law & Public Policy. To cele- brate the occasion, Former Senator and Secretary of Energy E. Spencer Abraham writes our Foreword, reflecting on his role as co-founder of the Journal and its continuing importance at this juncture in our nation’s legal, political, and cultural history. Second, Former U.S. Solicitor General Paul D. Clement reviews Scalia Speaks, a delightful collection of the late Justice Scalia’s speeches edited by his son Christopher J. Scalia and former law clerk Edward Whelan. I am also pleased to present two Notes written by editors of the Journal. George Maliha studies the problem of noncompli- ant insanity in criminal law, and advocates a per se rule confin- ing judicial inquiry to the narrow time frame immediately pre- ceding the criminal act. Jennifer Barrow defends the constitutionality and statutory authorization of President Trump’s “travel ban,” but questions the wisdom of the policy as a vehicle for protecting persecuted religious minorities. The editorial staff of the Journal deserve our sincere thanks for their tireless effort to bring this Issue to publication. I would like to extend warm congratulations to all of the editors who made this Issue possible. The conversation within the legal academy would be impoverished without the courage and conviction of these students, who have not shied away from addressing the pressing and controversial topics that only the Harvard Journal of Law & Public Policy seems willing to address. Joshua J. Craddock Editor-in-Chief FOREWORD A FOUNDER’S REFLECTION’S REFLECTIONS: THE JOURNAL AT FORTY YEARS On the occasion of the Harvard Journal of Law & Public Policy’s fortieth anniversary, it is fitting to provide a brief reflection on the Journal’s history. In the mid-1970s, the environment at Harvard Law School and other law schools was not friendly to conservatives. While there was an abundance of liberal publications on a variety of topics, neither Harvard nor any other major law school pub- lished a single conservative journal. Conservative academics had no outlet in which to publish their work. If law students wanted to develop their editing skills, their only option was to aid in preparing liberal scholarship. So, during the 1976–77 ac- ademic year, a handful of Harvard students decided to ap- proach the Law School administration about founding a jour- nal dedicated to publishing conservative and libertarian viewpoints on issues of law and public policy. Unsurprisingly, we were met with resistance. The Law School leadership refused to grant us funding for our endeav- or, claiming that the Law School only funded facially neutral publications. The many liberal law reviews associated with Harvard Law School at that time did not explicitly state their political viewpoints, and the Dean and other officials were ap- parently untroubled by the fact that
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