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 White
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- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017