Restricting expression

How many times will the Supreme Court have to affirm the First Amendment before expedient lawmakers and unprincipled prosecutors realize they can't subjectively ban protected expression?

Apparently, at least once more.

Justices on Tuesday suggested that Congress overreached in trying to protect citizens' innocent eyes from disgusting images of animal cruelty.

The court heard an Obama administration appeal to reinstate a decade-old federal law intended to ban the production and sale of videos that show the fatal torturing of creatures. An appeals court struck down the law in overturning the Justice Department's only successful prosecution, which resulted in Virginia resident Robert Stevens being sentenced to three years in prison in 2005 for making films about pit bull fighting.

Deputy Solicitor General Neal Katyal argued that the statute's exceptions for "serious religious, political, scientific, educational, journalistic, historical or artistic value" were strong enough to safeguard those forms of expression -- never mind that Mr. Stevens claimed his own films were documentaries intended to educate the public.

Members of the court correctly pointed out that the law requires authorities to determine what content complies with the law and what content doesn't -- which, by itself, violates the First Amendment. Justice Stephen Breyer said the law improperly forces the courts into the "work of interpreting these very vague words."

Mr. Stevens had an interesting assortment of allies in his case, including The New York Times, which joined with other media organizations in filing a brief that says the law "imperils the media's ability" to report on animal welfare issues; the National Rifle Association, which claimed the law's broad language could ban its popular hunting videos; and the American Civil Liberties Union, which asserted that the law "impermissibly criminalizes a vast array of protected expression [and] targets speech based on its viewpoint."

There simply is no way for lawmakers to come up with language that distinguishes between content geared toward depraved sexual fetishes and content intended to discourage such cruelty.

"You can't go first to the speech and make that the crime," said attorney Patricia A. Millett, who argued for Mr. Stevens.

The court seems inclined to deny the Obama administration's request. Good. When the law is run through the shredder for the final time, however, Congress shouldn't bother taping it back together.