On Animal Cruelty and Free Speech
Sometimes, though rarely, a
By an unusual and rather remarkable 8-1 vote, with Justice
It was the second time in recent months that the Court had cited free speech rights to reject federal law. Earlier it had thrown out the McCain-Feingold campaign finance limits on corporate and union contributions on the same general grounds, but in that case in a liberal-conservative split vote.
In this second case, the eight assenting justices brushed aside the blatantly cruel depictions of pit-bull fighting by a
The law originally was aimed at makers and distributors of so-called "crush videos," showing women in stiletto-heeled shoes stomping on cats, mice and other small animals and rodents, maiming or killing them, or burning them with lit cigarettes.
Roberts in his opinion took the Obama administration to task for placing "relative social cost and benefit" above the constitutional guarantee of free speech, calling that view itself "startling and dangerous." President
But Roberts wrote that "no one suggests that the videos in this case fit that description," and that depictions of animal cruelty "historically" had never been denied free-speech protection as, for example, child pornography was by the Court in 1982. Alito argued that the law in question should be applicable to bar "crush videos and dog fighting videos."
Roberts in oral argument suggested hypothetically, and ludicrously, that such videos could be used as political statements. "How can you tell these weren't political videos trying to fight animal cruelty?" he asked. Alito countered with obvious sarcasm: "What about people who like to see human sacrifice?" He said the court's decision could well result in a flood of new crush videos with the practical effect of legalizing their sale.
A lawyer for Stevens argued that there were other ways under the Constitution to deal with unwanted animal cruelty. It is a view joined by the
Acting on the decision, Republican Rep.
He noted that after Clinton signed the bill in question, the crush-video phenomenon "disappeared." In 26 states, he said attorneys general supported the campaign against animal-cruelty videos, as did the
It remains to be seen now how quickly
The same legal protection afforded victims of child pornography is warranted for them, and willing legislators and their lawyers should waste no time finding the language that will satisfy the most steadfast defenders of free speech.
This is not simply a case of flag burning, which, no matter how reprehensible, does not involve the inflicting of corporal punishment or the taking of lives. All members of
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(c) 2010 Jules Witcover