Last week the Third Circuit decided a significant First Amendment case — United States v. Stevens, which struck down 18 U.S.C. section 48, which criminalizes interstate sale of depictions of animal cruelty:

(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

The opinion is here.

I can’t come close to Prof. Marc Randazza’s spectacular analysis of the case, nor to Prof. Eugene Volokh’s summary, and shan’t try. I have just a couple of thoughts:

1. The United States supported the law through an analogy to child pornography cases, essentially asking for a new categorical carve-out from the First Amendment. As Prof. Volokh suggests, this illustrates how in a common-law system premised on precedent and analogy, even a generally palatable and popular categorical exception to free speech can be used again and again in attempts to justify further categorical exceptions. Stevens shows why me might be beguiled into accepting this steady perforation of the First Amendment — after all, as a society we probably like animals more consistently and sincerely than we like children.

2. Prof. Randazza’s analysis of the Bush Administration’s reliance on “low value speech” and “social desensitization” arguments is essential reading. It is sobering that the government would advocate application of such unprincipled exceptions to the First Amendment and that dissenters on a federal circuit court of appeals would seriously consider agreeing. Again, this illustrates the peril of the popular decision — endorsing such meretricious justifications to reach a nearly universally supported result leaves those justifications like discarded weapons ready to be held against our throats in some more troublesome case.

(n.b.: Though defended by the Bush Administration, Clinton signed this one. The goober. There are days when I hope that our executives and legislatures, after our deaths, are doomed to walk the halls of power weighted down with the unconstitutional but popular laws they cynically passed in derogation of their oaths, as Marley was weighed down with his chains of greed.)

If you read one turgid legal opinion about the application of First Amendment principles to animal cruelty this week, make it this one.

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