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Blog: Free speech doesn't depend on 'social benefits'

By Gene Policinski
First Amendment Center vice president/executive director

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The U.S. Supreme Court did not say yesterday that it was OK to beat your dog — or to do worse.

The Court did, however, refuse to create another broad exception to freedom of speech through a law it found too broad and potentially impractical to follow or enforce.

In United States v. Stevens, the nation’s highest court threw out a federal law created to ban videos that show graphic violence against animals, saying it violated the right to free speech. The justices also voided the conviction of a Virginia man, Robert Stevens, sentenced to three years in prison for videos he made about pit-bull fights.

The important lesson in the decision is one that Chief Justice John Roberts took care to make in the opening pages announcing the 8-1 decision: Our basic freedoms don’t depend for survival on some kind of analysis of relative positive results to society.

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survey an ad hoc balancing of relative social costs and benefits,” Roberts wrote. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweighs the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Roberts emphasized how broadly the law would reach, writing that, despite promises from prosecutors, the law could well be used against depictions of lawful activities such as hunting and other activities in which animals were killed, such as livestock slaughter in food-processing.

“Despite the Government’s assurance that it will apply [the law] to reach only 'extreme' cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly,” Roberts wrote in the majority opinion.

Acknowledging that the staging of dogfights is illegal in every state, the majority apparently found that Stevens’ case posed the kind of “overbroad” application of the law they consider unacceptable. Stevens was convicted of selling videos of pit-bull fights from Japan and from dogfights in the United States in the 1960s and 1970s; and videos of dogs attacking a wild boar and a pig.

The chief justice noted that the law, as currently written, would subject the producers of magazines and videos to “a bewildering maze of regulations from at least 56 separate jurisdictions,” because prosecution could take place wherever those products were sold even if the activity shown was legal in the place where it occurred, Roberts said.

Freedom of speech, by definition, protects speech than many (or most) of us find distasteful or repulsive. We have created only rare exceptions to that freedom.

Though “true threats” are not protected, we permit hateful speakers to vent against religious or racial groups — in part so that we all can hear that message and be moved to speak out against it. Though there are libel and slander laws, the First Amendment affirms a broad allowance for strong opinions and heated debates on public issues that call into question the motives and performance of public officials. And though we have laws on the books to protect youngsters from “adult” materials, adults have the right to choose to read and view materials some find objectionable.

Laws against animal cruelty also remain on the books, untouched by yesterday’s ruling. And the Court left open a constitutional window for a rewritten, more-specific law better aimed at depictions of the horrible maiming and killing of small animals in so-called “crush videos” or in “other depictions of extreme animal cruelty.” Shortly after the decision was announced, the Humane Society of the United States expressed hope that Congress so act, quickly.

The Court’s decision in Stevens is a reminder of the great danger the nation’s founders saw in permitting government to act as an unfettered censor, even with the best of intentions.

As Roberts wrote in the decision, “The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige” — the obligation of those in power to act honorably.

Comment? E-mail me


Justices strike down animal-cruelty video ban

High court says federal law violates First Amendment. 04.20.10

Court embraces First Amendment in Stevens

By Tony Mauro Roberts calls government defense of animal-video law 'startling and dangerous.' 04.21.10

Blog: Court refuses to create new free-speech exemption

By David L. Hudson Jr. Chief justice's reasoning in U.S. v. Stevens ensures that not every censor can take his or her slice out of First Amendment pie. 04.20.10

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