The Supreme Court today in an 8-1 decision, struck down a law in which a man was criminally prosecuted for producing videos showing pit bulls fighting, allegedly in violations of a ban on depictions of animal cruelty. The decision is a major First Amendment victory, as it may hold implications for overly broad content-based speech harassment laws, hate speech laws, and anti-bullying laws. Leading First Amendment scholar, Eugene Volokh, has called content-based speech harassment laws the greatest free speech threat facing the U.S.
Chief Justice Roberts wrote for the majority in U.S. v. Stevens, with Justice Alito the sole dissenter. The dissent in my view, mistakenly focused on the underlying animal cruelty depicted in some videos. Such underlying behavior is illegal. “Crush” type videos might also still be illegal, but the video at issue was not in that category, and efforts to stop illegal conduct must be narrowly applied so as not to tread on protected speech.
Eugene Volokh, aptly focuses on Chief Justice Robert’s demolition of the prosecutorial discretion arguments and the Holder Justice Department:
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But 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.
This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” No one suggests that the videos in this case [which involve dogfights and dogs attacking other animals] fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.
(All quotes by Chief Justice Roberts, emphasis added by Ex-Pat Ex-Lawyer).
It is critical that the public stays informed about the Constitution and the First Amendment and realizes, as the Chief Justice points out so well, it’s not about whether you like or agree with the underlying speech, and we can’t trust prosecutors or police to decide which cases they want to prosecute and which they don’t. We wouldn’t need a First Amendment to protect speech everyone likes or agrees with. If we wanted that, we could just become like Canada, where conservative columnist Mark Steyn has spent $1.5 million fighting hate speech charges for criticizing Islam.
Updated For Colorado: This law was so overbroad, it could have been used to send those
who photograph or video hunting scenes to prison. When President Clinton signed the law in 1999, he recognized it was constitutionally overbroad but signed it anyways. The founding fathers recognized that all branches of government, not just the judicial branch, have a responsibility to pass and enforce only laws that are constitutional.
That doesn’t mean they will attain perfection in attempting to do so, and SCOTUS is the ultimate arbiter – but they need to try very hard. Clinton issued a “presidential signing statement” on how he wanted the order to be enforced. But it wasn’t binding on his own US Attorneys or future US Attorneys. He simply should have vetoed the law, but of course liberal “animal rights” Dem constituents wouldn’t have liked that.
This same problem exists in spades in Colorado, where a lot of unconstitutional laws sit on the books and are applied, or not, depending on law enforcement, depending on the DA, depending on local judges, depending on whether the defendant is popular or has money. The law in the Stevens case was applied against people for 10 years, and undoubtedly exerted a chilling effect on free speech rights during that period.
And of course, who can forget the “Dirty Dozen” tax increases that clearly violated the Colorado Constitution’s TABOR provision, and where all three branches of government ignored the law.
Speech harassment laws that are unconstitutional unless very narrowly applied sit on the books now in Colorado, as observed in this Glenwood Springs incident I reported on in March. Hopefully we’ll have a big legislative and gubernatorial shakeup in Colorado in November, and I pledge to ask every candidate whether they will make ridding the books of unconstitutional statutes (as well as merely stupid and/or outdated laws) a priority, and whether they unequivocally support Clear the Bench and will vote no-retain on the four justices targeted this November.