If government is censoring speech, it’s unconstitutional

When it comes to the areas protected by the First Amendment, Congress should write with a scalpel and not with a buzz saw.

I wish I’d said that. Defense attorney Patricia Millett did.

She was arguing before the U.S. Supreme Court on behalf of her client, Robert Stevens of Virginia, who faces prison time for selling videos of dogfights. A 1999 federal law makes it a crime to profit from depictions of animal cruelty.

The law specifically exempts “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The definition of artistic value alone is vague enough to cover just about anything.

This is a case that launches a thousand head-spinning what-ifs.

What about depictions of hunting? Of bullfights? Of cockfights?

Justice Samuel Alito threw out a hypothetical that appeared to have the government lawyer agreeing that it fit within one of the law’s exceptions, despite its outrageous premise.

“Suppose that I am an aficionado of the sort (of) gladiatorial contests that used to take place in ancient Rome, and suppose that some — Rome or some other place — decides that it wants to make money by staging these things and selling videos of them or broadcasting them live around the world,” Alito posited. “Do you have any doubt that that could be prohibitive?”

To which a startled Neal Katyal, deputy solicitor general, replied, “Well, it sounds like it would fall under the historical exemption …”

Alito prompted laughter in the packed courtroom when he asked the defense attorney about “The Human Sacrifice Channel” and whether that could be prohibited by Congress.

Millett zeroed in on those exemptions, “The problem with this statute is that presumably that statute would be even-handed and would it not say if the sacrifices were religious, or journalistic, or historic.”

But Justice Antonin Scalia brought the debate back to the point of the First Amendment.

“You can create a lot of First Amendment horribles. What about — what about a new Adolf Hitler?” Scalia asked. “Can we censor any depiction of that new Adolf Hitler and the horrible things that he is proposing, including extermination of a race? Is that proscribable under the First Amendment? Is that any less horrible than the human sacrifice contemplation?”

If the government can prohibit child pornography, why not animal cruelty videos? This resulted in several references to a case called Ferber, which for me draws the line of demarcation by saying: “When a definable class of material, such as that covered by the New York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment’s protection.”

I assume the same might be said of “The Human Sacrifice Channel,” except for that niggling little religion thing.

The debate never got into one of my what-ifs: Humans are animals. Wouldn’t this law, therefore, prohibit pay-per-view depictions of boxing and mixed martial arts, too?

What it really comes down to is whether the government can exercise its power to alter a public debate over an issue, whether it can prohibit one side’s strongest arguments while allowing them for the other.

An example that speaks right to the point is: The organization People for the Ethical Treatment of Animals has produced any number of bloody videos depicting seals being clubbed, wild animals caught in leg traps, cows and chickens being slaughtered. It is their strongest and most effective argument.

Scalia focused on this when he said of Stevens, “His message is that getting animals to fight is fun. That’s his message.”

Responding to the government’s contention that Stevens could make his point by using simulations but not actual video, Millett argued that “if you are forced in a popular debate that is going around this country now about the treatment of animals, to require one side to engage, to use simulated images, which is exactly what the government’s reply brief at page 3 insists upon, while those who want to ban conduct are allowed to use real images, that puts the government’s censorial thumb on the scale of public debate.”

That is what free speech is all about, no matter how offensive it might be.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press, free speech and access to public records. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

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