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Blog: Court refuses to create new free-speech exemption
First Amendment Watch

By David L. Hudson Jr.
First Amendment scholar

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The U.S. Supreme Court’s decision today in U.S. v. Stevens striking down a federal law targeting depictions of animal cruelty represents first and foremost a vital victory for the First Amendment. Writing for the 8-1 majority, Chief Justice John Roberts closed the door on the government’s alarming argument that the Court should create another categorical exemption from free-speech protection.

The government had argued that if the value of speech is substantially outweighed by its negative social costs, then the Court should create another exception to free speech. Chiefly, the government argued that depictions of animal cruelty were akin to child pornography — a category the Court officially excluded in New York v. Ferber (1982).

Roberts acknowledged that there already exist certain categorical exemptions from First Amendment protection — obscenity, defamation, fraud, incitement and speech integral to criminal conduct. But Roberts cautioned against creating new unprotected categories under a “highly manipulable balancing test.” He called the use of such a test “startling” and “dangerous.”

Roberts wrote in language destined to become oft-cited in free-speech jurisprudence: “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

He explained that the decision to create another categorical exemption required much more than simple balancing. There must be an indication that there is a strong historical tradition against protecting such expression. “Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” Roberts wrote.

The chief justice’s reasoning ensures that not every censor can take his or her slice out of the First Amendment pie.

That alone is reason to celebrate the Court’s decision in U.S. v. Stevens.

Comment? E-mail me


Justices strike down animal-cruelty video ban

High court says federal law violates First Amendment. 04.20.10

History of animal-cruelty law at issue in Stevens poses incongruity

By Adam Ezra Schulman Legislative history shows bill was passed to outlaw 'crush videos'; case before Supreme Court does not involve such depictions. 08.04.09

Court seems hostile to law against animal-cruelty depictions

By Tony Mauro Justices' concerns echo arguments made in briefs filed by opponents of federal statute. 10.07.09

Court embraces First Amendment in Stevens
By Tony Mauro Roberts calls government defense of animal-video law 'startling and dangerous.' 04.21.10

Blog: Speech advocates await dogfight-video ruling
By David L. Hudson Jr. Will Court create a new category of unprotected expression in U.S. v. Stevens animal-cruelty case? 02.26.10

Blog: Free speech doesn't depend on 'social benefits'
By Gene Policinski Supreme Court's Stevens ruling affirms danger of letting government act as censor, even with best intentions. 04.21.10

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