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.