Fire your congressional representatives—follow up

, None

by · Posted in: musings

The Supreme Court ruled on the case United States v. Stevens today that I wrote about last year in Fire your congressional representatives. They struck down the law that made depictions of animal cruelty illegal.

The Government agued that depictions of animal cruelty should be added to the list of other forms of unprotected speech such as child pornography and fraud. Writing for the majority Justice Stevens dismantled the Government's 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 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.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

The court was also critical of the breadth and vagueness of the law:

A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful. This provision greatly expands the scope of §48, because although there may be “a broad societal consensus” against cruelty to animals, there is substantial disagreement on what types of conduct are properly regarded as cruel. Both views about cruelty to animals and regulations having no connection to cruelty vary widely from place to place.

Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions. Some States permit hunting with crossbows, while others forbid it, or restrict it only to the disabled, Missouri allows the “canned” hunting of ungulates held in captivity, but Montana restricts such hunting to certain bird species. The sharp-tailed grouse may be hunted in Idaho, but not in Washington. [Citations omitted]

The full text of the court's opinion including Justice Alito's dissent is available here.