First Amendment ruling keeps the path clear
The First Amendment is not the destination. It is the path. It is how America as a society finds its way. It must be a clear path, not uncharted territory.
To work properly, it must be interpreted liberally, to allow free- and far-ranging discussion of any topic, unconstrained by the threat of government prosecution for stepping over some ill-defined and movable boundary -- no matter how repulsive 99 percent of us find a message or its method.
In upholding that principle, the U.S. Supreme Court this past week struck down as overly broad and vague a federal law outlawing depictions of animal cruelty.
Of particular significance in the opinion penned by Chief Justice John Roberts was the conclusion Congress cannot pass laws that are open to wildly varying interpretations:
"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.'
"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."
Congress' original intent in passing the law in question was to criminalize the trafficking in videos showing women slowly crushing small animals with their feet, supposedly appealing to some rare sexual pervasion.
But the person being prosecuted under the law and facing three years in prison was charged with selling videos of dogfights that took place in Japan, where such activity is reportedly legal.
The law specifically makes it illegal to show a living animal "intentionally maimed, mutilated, tortured, wounded, or killed." But the law makes exceptions for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."
That's a pretty broad list of exceptions. Back when the case was being argued, Justice Samuel Alito rhetorically asked whether Congress could prohibit "The Human Sacrifice Channel." That might fall under any number of those exceptions.
There must be a distinction between an act that warrants criminal penalties -- and animal cruelty most assuredly does -- and the ability of people to discuss the act and debate whether it should be criminal or not.
There is nothing wrong with prosecuting dogfighters, but prosecuting the person who creates a video of it is an abridgment of free speech.
Under this law, it is conceivable the People for the Ethical Treatment of Animals could be prosecuted for their gut-wrenching videos showing chicken and cattle slaughter, game hunting and the clubbing of baby seals. Those are strong arguments for them.
Conceivably, nature films showing predators and their prey could be caught in the jaws of the law -- much less pictures and videos of hunting, or even the rodeo.
People should be allowed to argue for the enactment of laws and for their repeal, using all the tools of free speech available. Otherwise, it would have been illegal to argue for the repeal of Prohibition.
Why, it would be illegal to argue that military conscription is unconstitutional under the 13th Amendment ban on involuntary servitude. (Oh yeah, Justice Holmes already did that, saying that was like falsely shouting "Fire!" in a theater.)
The one exception to this argument, as the court pointed out in its ruling, is child pornography, which is "intrinsically related" to the underlying abuse. And the court seemed to leave an opening for Congress to try to draft a law specific to the crush videos if it can convincingly argue the video and the act are entwined.
The court's 8-1 ruling made it clear the law as written is simply subject to too much interpretation, and the government's promise to restrict prosecution to extreme cases is woefully inadequate.
Roberts wrote that the "First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.
"The Government's assurance that it will apply (the law) far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading."
The court cleared this bramble of bad law from the path.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the First Amendment, the free press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.
