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Abstract

Murderabilia refers to items whose commercial value stems from their relation to a notorious crime or criminal. To protect victims of crime from psychological harm, most states have passed laws restricting the sale of murderabilia. Many of these laws have been challenged on First Amendment grounds, and observers consider them to be of questionable constitutionality. I propose that the constitutional framework allowing states to restrict child pornography can solve this problem. In New York v. Ferber, the Supreme Court held that states may restrict child pornography as speech, without regard to its First Amendment value, because it is “intrinsically related” to crime in two ways—it creates an economic incentive to commit child abuse (to produce child pornography) and its circulation harms child victims by forcing them to recall their experiences. The same rationale applies to murderabilia, because it creates an economic incentive to commit crime and its circulation harms crime victims. Nevertheless, considering the range of speech that can be considered murderabilia—from bags of dirt to abstract paintings— laws that restrict murderabilia are more likely to run afoul of the First Amendment than child pornography laws. Therefore, murderabilia laws must be strictly limited to the most harmful crimes, the most vulnerable victims, and the least expressive types of murderabilia. With properly limited laws, states should be free to restrict murderabilia as they restrict child pornography under Ferber.

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