The Supreme Court's 'Robustly Libertarian View' of Free Speech

Yesterday the Supreme Court resoundingly rejected the 1999 federal ban on the commercial creation, possession, or sale of images or audio recordings of animal cruelty. Aimed at sexual fetish videos that show women torturing and killing small animals, the law instead has been used to prosecute people for selling dogfighting videos, and its potential reach is even broader. It applies to visual or auditory depictions "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" when that conduct violates the law of the jurisdiction where the material is created, possessed, or sold. It does not matter whether the person selling the images had any role in the actions they depict, and it does not matter whether those actions were legal in the place where (or at the time when) they occurred. The defendant in this case, for example, was a pit bull enthusiast who was not involved in dogfighting, and his footage either predated bans on the sport or came from Japan, where dogfighting is legal. But simply distributing the videos was enough to earn him a five-year prison sentence.

With Justice Samuel Alito the sole dissenter, the Court concluded that the ban on depictions of animal cruelty violates the First Amendment because it is "substantially overbroad." Writing for the majority, Chief Justice John Roberts noted that the law on its face would apply to hunting videos and magazines (which depict the wounding and killing of animals) sold in jurisdictions, such as the District of Columbia, where hunting is illegal. It also would apply to images of hunting or fishing that was illegal in the jurisdiction where it occurred—say, because it was out of season, because a required permit was not obtained, or because the catch was below a size limit or above a quantity limit. And it could cover such heretofore legal material as footage of bullfighting in Spain, or even journalistic coverage of animal mistreatment. Roberts said the law's exemption for material with "serious religious, political, scientific, educational, journalistic, historical, or artistic value" was not an adequate safeguard against such applications, since it depends on a judgment of what constitutes "serious" value. In any case, he said, even material whose value does not rise to that level deserves protection by the First Amendment. Nor was the Court reassured by the government's promise that it would target only "extreme" cruelty:

The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint.

The Court spurned the government's invitation to recognize a new category of speech that (like defamation, incitement, and obscenity) does not receive First Amendment protection. "Whether a given category of speech enjoys First Amendment protection," the government argued, "depends upon a categorical balancing of the value of the speech against its societal costs." You can picture Roberts shaking his head as he responds:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

Almost as heartening as the decision itself is the gloss that New York Times legal writer Adam Liptak gives it in his front-page story:

It has been more than a quarter-century since the Supreme Court placed a category of speech outside the protection of the First Amendment. Tuesday’s resounding and lopsided rejection of a request that it do so, along with its decision in Citizens United in January—concluding that corporations may spend freely in candidate elections—suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech.

And in the next couple of months, the court is set to decide several other important First Amendment cases about anonymous speech, the right of free association and a federal law that limits speech supporting terrorist organizations.

For the Court to adopt "a robustly libertarian view" of anything would be nice, of course. But it's also encouraging that Liptak (unlike his paper's editorial board) understands that Citizens United is of a piece with yesterday's decision, and that both are related to cases involving opponents of gay marriage who want to remain anonymous, Christian student groups that want to exclude people who engage in extramarital sex, and activists who want to persuade terrorist organizations to move in a peaceful direction. Neither progressives nor conservatives are inclined to sympathize with all of these speakers, but they should be able to recognize the importance of the principles at stake.

I discuss the animal cruelty case here, here, and here.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • MIchael Vick||

    I am back in business!

  • Dar Keyes||

    But videos of people fucking children are still illegal. It sure is a funny country.

  • Seventh Son||

    I still say that such videos would violate the human right to privacy, given that the victim's consent was not attained in the case of rape, but most libertarians seem to disagree with me.

  • Seventh Son||

    To clarify: the prevailing libertarian philosophy, from what I've read, is that there is no right to privacy.

    I still call myself a libertarian, but my strong belief in that right makes me wonder if perhaps I'm being misleading by doing so.

  • dave b.||

    And have you been getting this so-called 'philosophy' from the likes of Beck, Boortz, or Michael Savage?

  • Stateless Patriot||

    I would argue that individuals have a property right to privacy. Meaning that it should be legal to photograph a person inside their house (even nude) from a public street, but to do the same in the bushes outside of a person's bathroom window would be a violation of his or her (property) right to privacy, because it would involve trespassing.

    For that reason, I don't think that "voyeurism" should be illegal if done on (or from) ones' own property, or on a property that one has been invited onto (like if you were invited to a party and while there took a video of a couple having sex on the couch).

  • BakedPenguin||

    Are you trolling or serious? The general idea I've gotten is that libertarian definitely believe in a right to privacy (under the 4th & 10th amendments). However, many question it as a basis for abortion rights.

  • Seventh Son||

    I'm not trolling, but as I've stated elsewhere, I don't claim to know for sure what the majority of libertarians think.

    A couple relevant articles:

    http://reason.com/archives/200.....s-of-child

    http://mises.org/rothbard/ethics/sixteen.asp

    That's just two, but I can supply more if need be--they were just the easiest to find.

  • ||

    Your privacy is pretty well protected in libertopia:

    (1) You are in charge of what you disclose to third parties.

    (2) You can contract with third parties to protect the privacy of what you disclose to them.

    (3) As Suge noted, your property rights are a pretty powerful protection of anything not covered above.

    So, I don't know that there is a "privacy right" per se, but there's plenty of privacy protection.

  • Seventh Son||

    Fair enough. Like many here, I think the right to privacy derives from property rights, and anyone undergoing reasonable measures to protect their privacy should be protected from disclosure of that visual information (different from, say, verbal information), given their property rights. That is, provided you believe in government power at all.

    Of course, that doesn't mean the government should overstep its boundaries and start violating other peoples' privacy in the name of protecting potential victims, but that's a given in "libertopia."

  • ||

    So, what, you took a poll of libertarians to determine this?

  • Tomcat1066||

    +1

    For the record, most libertarians that *I* talk to sure as hell think there is a right to privacy.

  • robc||

    Yep, its a 9th amendment right.

  • cynical||

    Or fourth amendment, even.

  • Seventh Son||

    A constitutional right, yes, but a natural right?

    In other words, can the government punish people who violate each others' privacy and be justified in doing so, since voyeurism, for example, isn't violent in the most obvious sense?

    If you answer yes, I agree with you, for the record.

  • ||

    While a violation of self-ownership (you have the right to determine who sees any bits you make an effort to hide,) it seems that voyeurism is pretty hard to commit without some sort of trespass. (Keeping your shades up and doing nude yoga in NYC isn't really fulfilling your end of an intention to be private.) That is a much greater violation of self-ownership than having someone take a peek at your breasts.

    Since a minor or a drugged person can't make any informed and affirmative consent to be filmed for the purposes of sexual gratification, it is obviously a violation self-ownership. But it seems that most of the violation has been committed by the makers and not the mere possessors of said recordings.

  • ||

    I guess I'm the freak here because I would argue the opposite. I think there's a natural right to privacy but don't believe it's constitutionally protected.

  • Dekker451||

    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    http://www.archives.gov/exhibi.....cript.html

  • Dekker451||

    "Constitutional rights" is a misnomer. The Constitution does not grant rights. The Constitution does not define rights but rather enumerate rights considered to already exist.

    In other words,"constitutional" rights *are* natural, which is to say they are inherent (God-given if you like).

    To answer your question, yes. The purpose of government is to provide things that individuals alone are unable to provide and sometimes that includes protection of our rights. As the old saying goes, your rights stop at the end of my nose.

  • Seventh Son||

    Not really, hence the "seem." I acknowledge that I could be wrong (I'd hope so), but much of the philosophy I've read--ranging from the material on the Mises institute to minarchist documents--SEEMS to posit that violation of privacy is by its nature non-violent.

    Even on this site (by no means the definitive basis upon which to judge views commonly held by libertarians), it isn't hard to find comments that would advocate the view that such violations are harmless and laws preventing distribution of such pornography basically punish "thought crimes."

    It's hard to know, even with polls, what MOST of any "group" thinks. I don't claim to have absolute knowledge of any of this since I'm still new to the philosophy, just limited experience.

  • "it's toasted"||

    It's difficult to argue a natural or human right to privacy...but easy to argue a natural or human right to property...therefore, if belongings you intentionally conceal are revealed against your will, then you may argue your property has been violated. For instance, let's say you send out a naughty picture to a lover. You eventually break up and that ex-lover then sends this naughty picture to everyone you know. I would say, you have absolutely no claim to privacy (For you sent it). You certainly would feel betrayed by your ex-lover, but no right protects you from this...that is, unless your ex-lover signed some sort of "do not duplicate" contract

  • "it's toasted"||

    But i'll add, that though i may not believe we have a natural right to privacy, i think that a victim of voyeurism could easily claim that an amount of harm has befallen them because of the voyeurs actions. And whether its a libertarian, conservative or statist political theory you are looking at, none will give a clear definition of what constitutes harm...best to judge on an individual bases.

  • ||

    Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

    Well, unless its commercial speech, of course.

  • ¢||

    The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.

    Paleo!

  • creech||

    Alito and the government lawyers are seditionists.

  • Fluffy||

    that both are related to cases involving opponents of gay marriage who want to remain anonymous

    That case is not related to free speech at all.

    It involves not persons who want their speech to remain anonymous, but persons who want to anonymously utilize the legislative function to make laws, which is quite different.

    Anonymous political conduct makes no sense in the context of citizen ballot initiatives.

    You may as well argue that the free speech rights of Congressmen demand that they be permitted to cast anonymous votes on the floor of the House, to make sure no citizen can "retaliate" against them for their beliefs.

  • Angry Sam||

    Yeah, folks on the east coast aren't as familiar with how powerful and common ballot referenda are out west. The Washington case is a situation where one group of people want to legislate in a semi-anonymous fashion.

    I say semi-anonymous because even though they'd like to block their identities from public dissemination, they're still happy to allow the government to verify names and addresses. Calling it a first amendment or privacy issue is not representing the kind of odd protection those people actually want.

  • ||

    It's not any odder than the protection people want for voting and the secret ballot. It may well be inappropriate for referenda, but it's not like it's a privacy issue that's unforeseen.

  • ||

    All voting in Congress is a matter of public record. However, not all floor votes are roll call votes. "There are voice votes (“aye” or “no”) and division or standing votes (where the presiding officer counts Members), and these types of votes do not indicate by name how a Member voted."

    It could be argued that these are anonymous votes cast by the congressmen.

  • ||

    It involves not persons who want their speech to remain anonymous, but persons who want to anonymously utilize the legislative function to make laws, which is quite different.

    Anonymous political conduct makes no sense in the context of citizen ballot initiatives.

    But we do demand that people be able to cast votes anonymously for representatives. It seems to me like voting for initiatives is in between the case of a representative and voting for representatives.

  • ||

    But they aren't voting for an initiative. They are endorsing the initiative to be placed on the ballot. Since the petition process isn't controlled like an election but instead involves passing a paper around for people to sign, the verification process REQUIRES a lack of anonymity to make sure that "Mickey Mouse" isn't signing it a thousand times.

  • ||

    This is a victory for Cannibal Holocaust.

  • Tman||

    This is definitely great news to hear that Roberts is trying to restore the original meaning of the constitutional principles in regards to deciding cases presented to the SCOTUS. If the media wants to say that this is a "more libertarian direction" that's fine with me, but the fact is that this is whole purpose for having a SCOTUS to being with; to make sure that our laws our in fact consistent with the constitution.

    Now if we could just get Roberts and Co. to take this same attitude with the Interstate Commerce Clause we might actually start seeing some limitations of government.

  • Tman||

    Awesome use of preview moron.

    "purpose for having a SCOTUS to being with; to make sure that our laws our in fact consistent with"

    should be-

    "purpose for having a SCOTUS to begin with; to make sure that our laws are in fact consistent with"

  • ||

    Thereby proving once again that only libertarians embrace the First Amendment to its fullest extent. Progs and Cons can screw themselves

  • ||

    I keep trying to tell my friends and family that libertarianism isn't about defending the dog-fuckers, but I guess the real world just proved me wrong--again.

  • ||

    Yeah, this is exactly the type of thing that keeps libertarianism marginalized. Yeah, sure it was a bad law, but a bad law that affects very few people. Cato could have chosen to expend it's resources on a more sympathetic cause, but didn't.

  • Zeb||

    True, but it is the right thing to do and free speech is pretty damn important. When even the incredibly obviously correct Citizens United decision is considered some sort of conservative conspiracy by much of the main stream, we're pretty marginalized either way.

  • Fluffy||

    Yeah, sure it was a bad law, but a bad law that affects very few people.

    I find your love of justice and your heroism very inspiring.

  • ||

    I am much happier to get a correct decision that alienates most everyone. If you draw the line so free speech protects animal torture for entertainment, it becomes that much harder to silence people who say things against the establishment.

    The problem with taking up arms against the grossest violations of Constitutionally Enshrined Rights, is when you loose it means the government has carte blanche to fuck you as hard as it likes.

  • LarryA||

    Yeah, sure it was a bad law, but a bad law that affects very few people.

    You mean like the millions of people who hunt and fish and who have photos of themselves and their catch? This law was over-broad because you could be prosecuted for possession of depictions of legal activity in a place where that activity was in any way prohibited.

  • Craig||

    As usual, the conservative justices show more "diversity" than the liberal ones.

  • SIV||

    So in Japan you can legally go to a dog fight and snack on whale meat while you watch.

  • ||

    You can also buy used schoolgirl panties out of a vending machine. And beer.

  • ed||

    Everybody wins!

  • Yackov||

    In Soviet Union, used schoolgirl panties buy you!

  • Hobo Chang Ba||

    True, but if you kill somebody because they suicidally jump in front of your car, you go to jail for years.

  • ||

    Land of the free...

  • ||

    Unless you want full-penetration, hardcore pornography (under Japanese law the naughty bits have to be blurred out).

  • Zeb||

    I'll believe that there is a robustly libertarian interpretation of the First when you can say "fuck" on TV and there is no legal status called "obscene". Child porn is a rather different issue, though I think that penalties for simple possession are too harsh and broad.

  • ||

    Liptak - 'concluding that corporations may spend freely in candidate elections'.

    That's not true, however. Corporations are still not allowed to donate directly to a candidate. Additionally, the Court struck down federal laws on campaign ads and not state regulations. Several states still ban corporations from running political ads.

    IOW, Citizens United was a crucial ruling but there's still much more to do on this.

    As usual when it comes to the modern state.

  • ||

    The defendant in this case, for example, was a pit bull enthusiast who was not involved in dogfighting, and his footage either predated bans on the sport or came from Japan, where dogfighting is legal.

    Dude, Sullum, I agree with you. You don't have to sugar-coat the facts with euphemisms like "pit bull enthusiast."

  • ||

    The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint.

    HOLY FUCKING SHIT
    That could be the most hopeful language to be found in any majority decision of the SCOTUS in my lifetime. Today for the first time I have reason to believe that members of the Court have read the Constitution of the United States.
    I think I'm going to cry.

    DRINKS ON THE HOUSE!

  • Brian||

    I had the same reaction. Gave me that warm and fuzzy feeling that I imagine progressives get when they nationalize something or get a substance banned.

  • ||

    You had the same thought I did. Using this premise, there are a lot of cases that could stand to be revisited by this court.

  • ||

    Our Constitutional discourse has been so debased that this actually counts as a "robustly libertarian" decision. Of course, a real "robustly libertarian decision would read like this:

    The First Amendment says Congress shall make no law abridging the freedom of speech or of the press.

    This law criminalizes visual and auditory depictions of certain acts. It, therefore, abridges the freedom of speech or of the press, and is unconstitutional.

    Anything more than this is just gabble acknowledging or laying the groundwork for the state to abridge freedom of expression.

  • ||

    ...and, likewise, attempts to prevent publication of nuclear secrets, nerve gas recipes, troop locations, defamatory stories etc. also, i assume "abridge the freedom of speech or of the press" and are thus unconstitutional?

    hint: if you think you have an easy solution to a hard problem (that a lot of really smart people have somehow overlooked) you're almost certainly clueless.

  • when the revolution comes||

    at least documentaries like The Cove and shows like Whale Wars are legal now.

  • Hobo Chang Ba||

    Yeah - I was wondering how PETA could continue distributing their shock videos of animal mistreatment if this were illegal. Same with documentaries on dogfighting. Because ignoring the problem will make it go away...?

  • beowulf||

    What the hell was Alito thinking? It's hard to comprehend a dissent in this case ...

  • Hobo Chang Ba||

    Christian student groups that want to get taxpayer funding and government legitimization for their organization to exclude people who engage in extramarital sex the gays and non-Christians forced to pay taxes that fund it.

    Corrected.

    That case has nothing to do with freedom of speech, association or religion, as no government is preventing the group from the exercise of those rights. They're not even stopping them from assembling on public, state-owned property.

  • LarryA||

    The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.

    Now, how about the Second Amendment?

  • ||

    +1

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement