In a major free speech victory, the Supreme Court has ruled in the Stevens cases — striking down a law designed to punish the sale of dog fighting and so called “crush films.” The vote was 8-1.

This case focused on a federal law criminalizing sale or possession of such images. The Court found it was an unconstitutional limitation on free speech, a decision I strongly agree with.

These films discussed earlier often show animals being crushed or bitten for a group of people with sadistic and subhuman tastes. However, it may also present the ultimate question of free speech. States are moving toward treating the sale and even possession of such images as a crime.

In this case, the court of appeals also found that the law unconstitutionally restricted speech. For the story and Third Circuit opinion, click here. Judge Brooks Smith wrote: “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.”

The civil liberties concern is the degree to which the government can criminalize the content of picture, emails, and publications. Animal cruelty is a broad potential category of restricted speech. The federal law defines it in the following way:

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State . . .

This would obviously include any cockfighting or dogfighting videos. It notably also includes auditory depiction and could include small audio clips interpreted as cruel under this definition. There is an exception for “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” That would appear to exclude religious sacrifices. However, this standard can be read broadly or narrowly. What does “serious” mean? A serious religion or artist or journalist is a matter of considerable debate. Does this include the harming of animals for films when it is not necessary to do so but the director wants gritty reality?

Chief Justice Roberts wrote the majority opinion. Only Justice Alito dissented. Roberts noted that the law “creates a criminal prohibition of alarming breadth” and said that the Court was not willing to uphold the law “merely because the government promises to use it responsibly.”

In a remarkably strong opinion, Roberts rejected the government’s overall claims:

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

Here is the opinion: Stevens Decision