NY Times; Corporate Speech Bad, Animal Cruelty Speech Good

Here is the editorial:

Editorial
The Court and Free Speech

When the Supreme Court ruled 8-to-1 this week that a federal law banning the sale of animal-cruelty videos violates the First Amendment, it reaffirmed the right to engage in even highly unpopular speech. And it wisely declined to create another category of expression outside of the First Amendment’s protection.

With this case and the court’s earlier Citizens United decision on corporate speech and political campaign contributions, this could be one of the most important terms in years for defining the constitutional scope of freedom of expression — for better or for worse.

Taken together, the rulings give freedom of speech a wide berth in two directions. The animal-cruelty ruling takes a strong and welcome stand that there should be only very narrow exceptions to the general rule that almost all content of speech is protected. That view is broadly accepted by most judges and constitutional scholars, and was reflected in the fact that eight justices from across the political spectrum joined the majority.

The campaign finance ruling, regrettably, gave a particular kind of speaker — corporations — a more expansive free speech right to spend than the court has ever acknowledged. The break there with the nation’s legal traditions was sharp, and opened the floodgates for big business and special-interest dollars to overwhelm American politics. That was delivered by a bitterly divided 5-to-4 court.

The animal-cruelty case involved Robert Stevens, who ran a business that sold disturbing, even disgusting, videos of pit bulls fighting and attacking other animals. Mr. Stevens was convicted under a federal law that criminalizes the sale of depictions of animal cruelty if the acts are illegal in the state where the depiction is sold.

The Supreme Court ruled, in United States v. Stevens, that Mr. Stevens’s conviction violated the First Amendment. It declined to add animal cruelty to the short list of forms of expression — including obscenity, incitement and defamation — that are not protected by the Constitution.

It then went on to rule that the federal law was overly broad, since it swept within its coverage many sorts of images that should be considered core protected speech. For example, hunting is illegal in the District of Columbia, and under the law, selling hunting magazines there would also be illegal.

The majority opinion, by Chief Justice John Roberts Jr., was a strong affirmation of the importance of freedom of expression, even in the face of substantial societal condemnation of the horrific nature of some of the speech involved. It was gratifying that the court recognized that the right way to protect animals from abuse is through laws aimed at the abuse itself, not at free expression.

The court has two more important free speech cases coming up. One raises the question of whether people have a right to keep their identities secret if they signed a petition to put a referendum against same-sex marriage on the ballot. Putting an initiative on the ballot is an important governmental act, and we hope the court does not decide that there is a right to do so anonymously.

The court has already heard arguments in a challenge to a federal law barring material support to terrorists, which prohibits some kinds of speech in support of controversial causes. We hope it narrows the statute’s scope, carefully sorting through what kinds of assistance are protected speech, and what are the sorts of aid the government can properly prohibit.

That respectful treatment of the First Amendment, also reflected in the Stevens case, is what the nation needs from this court — not the recklessness of the ruling in the Citizens United case.

Link

My own view is that political speech is at the very core of the First Amendment (regardless of who is speaking) and that animal cruelty porn, although protected, is at the outer edge of the First Amendment.

More on CLS Case

From WSJ (link):

Sameness and 'Diversity' on Campus

Why a California dean would force a black group to admit white supremacists.

If ever you wonder why those thumping loudest for tolerance and diversity produce so much sameness, look no further than this little exchange on public television about an important case now before the Supreme Court. The dean is Leo Martinez of the University of California Hastings College of the Law. Here he is defending the school policy at issue, which requires the Christian Legal Society (CLS) to admit non-Christians and gays if it wants to be an official student group:

Question: "Would a student chapter of, say, B'nai B'rith, a Jewish Anti-Defamation League, have to admit Muslims?"

Mr. Martinez: "The short answer is 'yes.'"

Question: "A black group would have to admit white supremacists?"

Mr. Martinez: "It would."

Question: "Even if it means a black student organization is going to have to admit members of the Ku Klux Klan?"

Mr. Martinez: "Yes."

Question: "You can see where that might cause some consternation?"

Certainly there was some consternation yesterday at the Supreme Court. Justice Antonin Scalia found the idea of forcing a campus Republican club to admit Democrats "weird." Meanwhile, Justice Sonia Sotomayor worried whether allowing CLS to set its own rules would mean more discrimination against women and minorities.

But let's give Dean Martinez credit: He does not shy away from the logic of where his school's policy leads. His remarks help explain two facts. The first is why a Christian student organization has found strong allies among other faith groups. These include everyone from Agudath Israel of America and the American Islamic Congress to the Catholic bishops and the Sikh American Legal Defense and Education Fund.

The larger fact is the way that Hastings-style "tolerance" and "diversity" are actually making our campuses less tolerant and less diverse. Dean Martinez helps us see why. If every college group must admit even those who are hostile to its mission and beliefs, the result is nonsense and conformity.

At first blush, Hastings looks to be another example of the "culture wars," and where you stand on this case depends on what you believe about Christianity or traditional Christian teaching about homosexuality. Certainly Hastings tells us something about our culture wars. What it shows is how these kind of cultural skirmishes escalate into full-fledged wars when state approval or state money is involved.

Were Hastings a private institution, the same right of association now claimed by the Christian Legal Society would give the law school broader rights to set more narrow rules for students and faculty. When a handful of Orthodox Jews sued Yale in the late 1990s over the university's insistence that they live in co-ed dormitories, for example, Yale prevailed—largely because Yale is a private university. And there was no larger religious war.

Even those of us who believe a university that prides itself on its tolerance could have shown a little more accommodation toward those Jewish students do not question Yale's right to set rules that define the Yale experience. When government is involved, however, the stakes become higher and passions more excited. When a public university makes a decision, it's not simply a policy dispute. It's a public institution using your tax dollars to put a state imprimatur about who is and who is not fit for the public square.

That's a much more serious proposition than a simple disagreement with some private organization. That public/private distinction helps explain why CLS has also found allies in the libertarian Cato Institute and Gays & Lesbians for Individual Liberty. In their own brief, this latter group stresses that it was the ability of gay Americans to form gay associations—whose membership rules they defined for themselves—that gave them a collective voice in the face of an often hostile majority.

Presumably Gays & Lesbians for Individual Liberty do not share the CLS view of human sexuality. But they understand exactly where Dean Martinez's logic is taking us.

"[U]nder Hastings' forced membership policy, only majority viewpoints (or those viewpoints too banal to interest the majority) are actually assured a voice in Hastings' forum," argues their brief. "That is a patently unreasonable way to 'promote a diversity of viewpoints.'"

Exactly. Traditionally the American contribution to diversity has been the encouragement of thriving—and competing—private institutions and associations. Unfortunately, on American campuses today we see the opposite: an expanding government role in everything from research to how schools are accredited and how student loans are administered. One unintended consequence is that our culture wars are going to escalate as our courts are forced to take up a great many more cases like Hastings.

It may end up, of course, that Dean Martinez prevails, and we get more of his idea of tolerance and diversity. Let's not pretend to be surprised, however, when it all comes out looking the same.

Christian Legal Society Oral Argument Link

From How Appealing:

Access online the transcripts of today's U.S. Supreme Court oral arguments: You can access the argument transcript in Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, No. 08-1371, at this link.

And ReligionClause blog has this post:

Supreme Court Hears Arguments In Christian Legal Society's Clash With Hastings' Discrimination Rules -- [Updated With Link To Transcript]

The U.S. Supreme Court this morning heard oral arguments in Christian Legal Society v. Martinez. In the case, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition. (See prior posting.) AP reports that the Justices seemed sharply split:

Chief Justice John Roberts and Justice Samuel Alito questioned the school's lawyer sharply, saying that being forced to admit someone who doesn't share their beliefs was a threat to the group. But Justices Ruth Bader Ginsburg and Sonia Sotomayor pressed the group's lawyer on notion that if they can ban gays, other groups can legally ban women and minorities.

Scotus Blog last week had an excellent background article on the case. Scotus Wiki has links to all the briefs and much more background. An editorial titled The End of Religious Freedom? in Christianity Today outlines the arguments of Christian religious groups who hope that the 9th circuit will be reversed; while an editorial in today's New York Times titled A Case of Discrimination urges the Court to support the University's position.

The full transcript of the arguments are available online. Scotus Blog also has podcasts of the oral arguments of counsel for both sides, recorded before the actual argument. Last week, the Court turned down media requests for same-day release of the audio tapes of oral arguments in the case. According to the National Law Journal, this is the seventh time this term that such requests have been rejected.