Court Ruling Is About Free Speech, Not Animal Cruelty
As expected from the oral argument in U.S. v. Stevens last fall – when Justice Alito was alone in expressing some support for the government’s position – the Court on Tuesday upheld the First Amendment by declining to add a category of unprotected speech. This was not, after all, a case about the “human sacrifice channel” or Michael Vick’s greatest dog fights. Indeed, cruelty to animals should be and is punished everywhere in the country. Instead, at issue here was a broadly drawn “depiction of animal cruelty” statute that could have ensnared Spanish tourism brochures or hunting instructional videos. More fundamentally, the Court rightly rejected the government’s proposed weighing of the “value” of speech against its “social cost.” That’s simply not the way Americans view the First Amendment.
The case is also notable because a solid majority of the Court rejected the “speech balancing test” defended by Solicitor General Elena Kagan, often mentioned as being on the short list of candidates to succeed retiring Justice John Paul Stevens. Chief Justice Roberts’ opinion, joined by all of the panel’s liberal justices, went so far as to call that argument by Kagan “startling and dangerous.” That is the kind of legal reproach that tends to be revisited at confirmation hearings.
Supreme Court Mulls Gladiators and the “Human Sacrifice Channel”
Following up on David’s post about the Stevens “depictions of animal cruelty” case, my takeaway from this morning’s argument is that there’s not a single vote to uphold the law. The closest the government came to sympathy for its position came when Chief Justice Roberts wondered whether, if a narrower statute proscribing the “crush videos” that were the ostensible target of this legislation, the Court might uphold this broad statute on its face but also welcome many as-applied challenges in instances of prosecutorial overreach. (For a pithy discussion of facial versus as-applied challenges, noting that the Court generally favors facial attacks in First Amendment cases, see Roger Pilon’s foreword to this year’s Cato Supreme Court Review.)
A less technical line of questioning involved the constitutionality of a statute banning a hypothetical “human sacrifice channel” or the broadcast of fight-to-the-death gladiatorial battles — from a foreign country where that sort of thing is legal. (Justice Scalia quipped that the rule cannot be that you satisfy the broad legislation’s “historical value” exception if you dress up as an ancient Roman.)
Much of the analysis about these types of extreme scenarios turns on whether the broadcast/depiction creates a market for such activities — which is the rationale for banning child pornography (i.e., fewer children are subject to sexual abuse if there is not a legal market for pictures and videos of children being sexually abused). Thus, a narrow statute banning the aforementioned crush videos would be kosher, as it were, but not the broad legislation at issue — which could potentially sweep in, to take one example, promotional videos put out by the Spanish board of tourism that include bullfighting clips.
For a more detailed report, see Lyle Denniston on SCOTUSblog (whom you can also see all week on C-SPAN’s excellent Supreme Court documentary mini-series). And again, to read Cato’s view, see our amicus curiae brief.
First Amendment Exceptions
The Supreme Court today is considering the case of United States v. Stevens, a challenge to a 1999 federal law outlawing depictions of animal cruelty. The government says that such depictions are “unprotected” speech. Many First Amendment advocates and news organizations are supporting the challenge to the law.
It seems an easy enough case to decide, given the plain language of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, except in the case of depictions of animal cruelty.
Right?
For a more substantive discussion of the issues in United States vs. Stevens, see the Cato Institute’s amicus curiae brief.
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