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.
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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.
