A really ugly case risks making some really bad law
July 27, 2009
Filed under Free Expression
CDT and the ACLU have joined a "friend of the court" brief filed in the Supreme Court by the DKT Liberty Project in what is a very ugly case. As the adage goes, "bad cases make bad law," and this is especially true in First Amendment cases involving unseemly (or worse) speech. There is a great risk that this case - U.S. v. Stevens -- will yield some very bad law. Stevens was convicted and sentenced to prison for distributing over the Internet videos depicting cruelty to animals. The videos including depictions, for example, of dog fights in Japan (where, as it happens, such activities are legal). Dog fights and other acts of cruelty to animals are (and should be) illegal in all fifty states, but this case raises the question of whether depictions of such dogfights should be wholly unprotected by the First Amendment. Although the videos in the case were distributed online, there aren't really Internet-specific issues in the case. CDT joined this brief not because of any Internet angle, but because of two broader, and extremely troublesome, arguments that the Obama Administration's Department of Justice has made to the Supreme Court. CDT's brief specifically focuses on the two arguments: First, DOJ urges the court to create a new category of speech that is outside of First Amendment protection (depictions of animal cruelty). In the history of the First Amendment, the Supreme Court has declared only a very few types of speech - such as obscenity, child pornography, defamation, and fighting words - as unprotected by the Constitution. First Amendment advocates get nervous at the idea that more and more categories of speech should be totally excluded from constitutional protection. But of even greater concern is that DOJ argues that First Amendment protection should be based on a "categorical balancing of the value of the speech against its societal costs." As our brief notes, "[t]he idea that the government may freely regulate speech based on an assessment of its 'value' is antithetical to [the Supreme] Court's longstanding recognition that all manner of speech - including offensive, controversial, and divisive speech - is protected by the First Amendment â€¦." A critical thing that sets this country apart from many others is that we protect the right to speak even if the content is unpopular or rejected by the majority. It is very worrisome that DOJ is urging such a balancing test. In the second troublesome argument, DOJ attempts to upset decades of Supreme Court precedent that imposes what is called "strict scrutiny" on any content-based regulation of speech. Under strict scrutiny, the burden is on the government to justify the constitutionality of the regulation in question. In the Stevens case, DOJ is arguing that the burden should be flipped, that Stevens should be required to prove that the law is unconstitutionally "overbroad," and that any decision of the Court should only apply to Mr. Stevens (and thus should not invalidate the law more broadly). All of these arguments would reverse a long history of First Amendment speech protection. If the Court were to adopt DOJ's arguments in this case, the decision could prove to be among the most damaging to the First Amendment in a long time. The underlying cruelty to animals is certainly horrific, and law enforcement should vigorously prosecute such cases. But this bad case has the potential to make some really bad law that reaches far beyond its facts.