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Cute Widdle Kitties: Cute, But Not Cuter Than First Amendment

Apr 20, 2010
By .
Law

Two years ago I applauded the Third Circuit for its decision in U.S. v. Stephens, in which the Court rejected the Bush Administration's attempt to create from whole cloth a new First Amendment exception — or category of "low value speech" — for "depictions of animal cruelty." The Supremes granted cert, and as Marc Randazza (who only approves of depictions of cruelty against defamation plaintiffs and Floridians) reports this morning, SCOTUS got it right, upholding the Third Circuit decision 8-1.

Marc hosts the decision here. As he suggests, the key to the decision is the Court's approach to historical carve-outs from free speech protection. The Court has always recognized certain exceptions to the plain language of the First Amendment based on established common law tradition — notably defamation law and obscenity. In Stephens, the Bush and Obama Administrations took the frightening position that courts could add new carve-outs without any historical support based on a touchy-feely weighing of the social value of particular speech. SCOTUS demolishes this argument:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

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 thatsome speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1
Cranch 137, 178 (1803).

What was at stake here was considerably more than anyone's right to sell "crush videos" — or videos of bullfights or fishing or cat juggling. What was at stake was our entire approach to the First Amendment — whether we would allow the courts to continue to poke holes it in based on vague "weighing" tests motivated by the fickle passions of the moment, or whether it would remain a bulwark against hostility towards disfavored speech. Everybody but Justice Alito got it right. Good for them.

Last 5 posts by Ken

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5 Comments

  1. Drew  •  Apr 20, 2010 @9:25 am

    What is your take on the carve out for the sale of child pornography involving real children?

  2. Ken  •  Apr 20, 2010 @9:52 am

    Drew, my take is that the carve-out for child porn is different than the type of carve-out the government is advocating here. As SCOTUS makes clear in this opinion, the child-porn carve out was justified using traditional strict scrutiny analysis applicable when a statute purports to regulate speech — the Court found a compelling state interest in protecting children from exploitation and, given the inextricable link between child porn and exploitation of children, found that the law was narrowly tailored. It didn't, as the government wants to, simply cheat at say that an entire category of speech was "low value" and therefore did not require strict scrutiny analysis.

    It's possible that some law banning trafficking in crush videos could survive strict scrutiny analysis.

  3. Little Raven  •  Apr 20, 2010 @10:17 am

    WTF was Alito thinking? Is he really just a lapdog for executive power?

  4. Charles  •  Apr 20, 2010 @2:57 pm

    Because Ken was first, I felt it was unfair that Patrick was getting all of the comments. Alito's opinion had a few elements: 1) where an as-applied challenge is sufficient to decide a case, don't reach out for a constitutional issue; 2) crush videos are clearly not protected by the First Amendment and 3) dogfighting videos are arguably not protected by the First Amendment, analogizing the cruelty and exploitation of dogfighting to kiddie porn. Alito would have remanded for a hearing on whether dogfighting videos are protected speech. If not, this case made a poor choice, in his mind, of deciding a facial challenge.

  5. Bill  •  Apr 21, 2010 @7:58 am

    The Supreme Court got this right only because the law was poorly drafted to be all-encompassing, and not narrowly tailored to "crush videos" or dog fighting videos. The government's promise not to enforce it against the makers of fishing videos and videos depicting other generally lawful activity did not hold water.

    Alito's dissent would have been correct if it involved anything other than the First Amendment. Normally, a challenger to the constitutionality of a statute must show that the statute is unconstitutional as applied to him. First Amendment jurisprudence, however, is different. An overbroad statute will be struck down even if the acts charged would pass constitutional muster if the statute were narrowly drafted.

    Narrowly tailoring such a statute presents problems, but can be done. If the underlying activity is legal in The State of Confusion, but illegal in The State of Shock, would prosecution for having videos filmed in Confusion, but possesed in Shock be unconstitutional?

    Another problem in narrowly tailoring such a statute is placing the burden of proof on the prosecutor to show that the video depicts real acts (not synthespian computer generated video).

    I believe that a statute that outlawed possession of video depictions of specifically identifiable acts may be OK.

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