Disgusting but Not Illegal

Chief Justice John Roberts Jr., who has become one of the First Amendment’s most adamant defenders, led the Supreme Court earlier this year in refusing to create a new exception to the free speech clause. With only one dissent, the court struck down a law that banned depictions of animal cruelty. The House has come back with a replacement bill that is an improvement over its predecessor but still misses the constitutional point Justice Roberts made.

Historically, the Supreme Court has recognized only a small handful of exceptions to free speech. As Justice Roberts explained in his opinion in April, the court has long held that government can ban obscenity, defamation, fraud, incitement and speech integral to criminal conduct, a category that includes child pornography. When Congress tried to add depiction of animal cruelty to this list, the court balked.

Justice Roberts said the court cannot create a new exception to free speech by simply balancing the value of the speech against its harm to society. The First Amendment “reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs,” he wrote. “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Almost no one would say depictions of animals being crushed or mutilated are worthwhile. The concept is so repulsive that animal rights advocates persuaded a very busy House to pass a new bill outlawing them.

Unlike the first one, the new bill excludes videos of hunting, trapping or fishing, or of normal agricultural practices. It bans any images of actual conduct in which animals are intentionally crushed, burned, drowned, suffocated or impaled in a manner that would violate federal or state animal cruelty laws. Most important, it simply declares that all such images are obscene.

Obscenity, however, is limited in American law to certain prurient sexual content. Cruelty to animals does not fit that category, and Congress cannot simply create a new category of obscenity. A better analogy would have been to child pornography, in which the act of taking pictures of children is itself illegal. But Justice Roberts said animal cruelty is not in that category either.

The First Amendment is a remarkably fragile institution that does not need more exceptions carved from its meaning. But attempts to do that arise all the time. A California case coming before the court in the next term attempts to ban the sale of violent video games to minors, though there is no recognized exception to the First Amendment for violence, either. These games, and animal cruelty videos, may be repugnant to many, but America’s legal tradition keeps them from being illegal.

Editorial, New York Times


Full article: http://www.nytimes.com/2010/08/02/opinion/02mon2.html