At issue: a federal statute bans commercials depictions of “animal cruelty,” namely a depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if killing or other action violates the law where the “the creation, sale, or possession takes place.” The statute would therefore outlaw the sale in the United States of a bullfighting video produced in Spain (since bullfighting is not legal in the United States), the sale of any hunting video or magazine in the District of Columbia (since no hunting is allowed in the District) or the sale of a crossbow hunting video or magazine in the many states which allow hunting with compound bows but not with crossbows.
There is an exception for a depiction “that has serious religious, political,scientific, educational, journalistic, historical, or artistic value.”
An 8-1 decision by written by Chief Justice Roberts held the statute to violate the First Amendment. The decision declines the government’s invitation to create a balancing test in order to add a new exception to the First Amendment. The government’s promise to enforce the very overbroad statute narrowly could only rescue the statute if the statutory language were susceptible to a limiting construction.
Relying on amici briefs from two organizations to which I happily belong (the Professional Outdoor Media Association and the National Rifle Association), the Court details how the statute means that the sale of videos and magazines depicting lawful hunting in one state would be a felony if the video were sold in a state whose regulations did not allow that particular type of hunting.
The government argued that hunting videos and magazines are protected by the exception for depictions of “serious” educational, journalistic, etc. value. However, as the Court notes, relying on amici briefs from Safari Club International, the Congressional Sportsmen’s Foundation, and the National Rifle Association, many hunting videos or magazines are not instructional, artistic, or historical, but are mainly for entertainment or recreation. The government urged that the exception be applied to any depiction which has at least “scant” value. However, the majority declines to read “serious” as equivalent to “scant.” Therefore, the statute outlaws most of the billion-dollar industry in hunting videos and magazines, at least if any of those videos are ever sold in the District of Columbia.
Accordingly, the statute is plainly invalid under well-established First Amendment doctrine.
Justice Alito, the lone dissenter, would read the statute to encompass only “animal cruelty” and would also presume that any depiction of lawful hunting has “serious” value. He notes “the predominant view in this country has long been that hunting serves many important values, and it is clear that Congress shares that view.” (Citing many presidential proclamations of National Hunting and Fishing Day, which was instituted at congressional request).
Further, writes Justice Alito, “it is widely thought that hunting has ‘scientific’ value in that it promotes conservation, ‘historical’ value in that it provides a link to past times when hunting played a critical role in daily life, and ‘educational’ value in that it furthers the understanding and appreciation of nature and our country’s past and instills valuable character traits. And if hunting itself is widely thought to serve these values, then it takes but a small additional step to conclude that depictions of hunting make a non-trivial contribution to the exchange of ideas.” Therefore, Justice Alito would construe the statute so narrowly that it reaches its intended targets (“crush” videos and dog-fighting videos) without causing extensive collateral damage.
Anonsters says:
Question: do you think that a law written to conform to Alito’s opinion would be unconstitutional?
One may be able to gather what I think about dog-fighting videos. —>
April 20, 2010, 1:11 pmAlan says:
If child pornography is going to remain the only exception, I’d love to know what the principled basis is for saying child pornography and absolutely nothing else qualifies as an exception. If the exception isn’t based on a broader principle applicable to something besides child pornography itself, then the exception isn’t constitutional interpretation in any sense at all.
April 20, 2010, 1:12 pmSara says:
I asked this in another thread but maybe the discussion has moved here:
Is it a correct reading that according to the majority opinion, if the words “cruelly wounded or killed in a cruel manner,” were inserted, or if “wounded” and “killed” were both excised from the statute then it would be narrowly tailored and satisfy the first amendment?
April 20, 2010, 1:13 pmSandy MacHoots says:
I’m not sure why this follows. Many laws are applicable only to minor children. Why would a first amendment exception limited solely to exploitation of children be a problem? I’m not arguing, I’m just curious.
April 20, 2010, 1:17 pm_____ says:
I’m disappointed in Roberts’ discussion of whether depictions of animal cruelty could be, as a category, exempted from the freedom of speech. He does, admirably, refuse to subject the first amendment’s scope to the tender mercies of a balancing test, but he also gives very little reasoning of his own about animal cruelty. Specifically: how are crush videos not “intrinsically related” to the crushing of animals in the same way that child porn is intrinsically related to child rape? What makes this case different from Ferber? I don’t think that the outcome was wrong, but the means used to get there are lacking.
April 20, 2010, 1:19 pmSara says:
There are other exceptions, but isn’t the rationale for the child porn exception that the act of photography of a child in such a manner is the crime, even if the child himself is doing nothing illegal in the picture. Why is that not principled?
April 20, 2010, 1:22 pmNickM says:
It’s perfectly legal to stomp on mice – or to snap their necks with a metal bar, or to feed them alive to other animals, or to catch them in glue traps so they die a slow death. Animal cruelty laws don’t protect things generally considered pests.
Nick
April 20, 2010, 1:24 pm_____ says:
That argument is circular: the speech should be a crime because the immediate act of producing the speech is a crime. It would make no more sense than to say that criticizing the government in public is not okay because we’ve passed a law that doesn’t allow you to use your voice to criticize the government.
April 20, 2010, 1:25 pmgecko says:
Who gets to decide what is cruel? Are we going to eventually prosecute some guy who feeds goldfish to his piranha on youtube? (they’re already talking about banning all video depictions outright). As for the child pornography objection, I don’t see a problem with recognizing that human laws generally apply to and protect humans not animals.
April 20, 2010, 1:25 pmMike McDougal says:
Basis: No one wants to look like a pedophile-lover.
April 20, 2010, 1:31 pmPersonFromPorlock says:
Not a problem, Congress can (post-Heller) require may-issue journalism licenses and control the tastefulness of publications that way. ;^)
April 20, 2010, 1:34 pmSara says:
I don’t know what you mean. All the exceptions to the first amendment hold that the immediate act of producing the speech is a crime, or is subject to criminal or civil penalty: fraud, speech in furtherance of a crime, libel etc.
April 20, 2010, 1:37 pmIlec says:
I would hope that in any civilized country, the following:
“[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeledshoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ul-timately left dead in a moist pile of blood-soaked hair and bone.” Brief for Humane Society of United States as Amicus Curiae 2 (hereinafter Humane Society Brief).
would be considered cruel. Intellectually I can understand why the majority reached the decision it did, but my heart is with Justice Alito’s dissent. I hope that Congress can find a constitutionally valid method for eradicating the creation of such videos.
April 20, 2010, 1:37 pmgecko says:
Not a law or constitutional argument but a philosophical one. The law protects humans because only humans are capable of shouldering its responsibilities, have the potential to shoulder its responsibilities fully or partially (babies, mentally disabled), or formerly were subject to its responsibilities (human vegetables). Animals aren’t protected by law because they don’t have to obey it (in any meaningful sense.)
April 20, 2010, 1:38 pmgecko says:
Every time there’s a problem everybody rushes to legislate it out of existence. Just every now and then I wish people would be allowed to do the right thing out of their own free will rather than be herded through their entire life by a labyrinth of laws.
April 20, 2010, 1:41 pmSara says:
If it’s not protected expression, usually a jury of your peers.
April 20, 2010, 1:49 pmMalvolio says:
[Gruesome depiction]
Yes, the horribles are on parade. Every infringement of liberty starts with some extreme case and then marches on to outlaw everything unpopular with any particular bureaucrat.
April 20, 2010, 1:51 pmJMA says:
Impossible, gecko. We’re bred to the labyrinth, of course. :)
April 20, 2010, 1:52 pmDilan Esper says:
I don’t really have a problem with child porn being the “only” exception. The point is, on the one hand, child porn is an extremely nasty and knotty problem that involves actual harm of children, continuing harm into adulthood if the victims see materials, recruiting by pedophiles, etc. On the other hand, if you start saying that any really harmful activity takes depiction outside of First Amendment protections, there really isn’t any limit to that principle. In this situation, it may not seem very principled, but saying “this far and no further” is a legitimate way of handling the matter doctrinally.
That said, what really doesn’t make sense is the continued unprotected status of obscenity. Depicting a sex act between consenting adults is so, so, so, so less harmful than filming animal cruelty.
April 20, 2010, 1:55 pmAnonsters says:
A parade of horribles is a depiction of what will ostensibly occur if we don’t do X.
The “[Gruesome depiction]” quoted actually occurred. It’s not a prediction. It’s reality.
April 20, 2010, 1:55 pmDavid M. Nieporent says:
Uh, “creating” such videos (in the U.S.) is effectively already illegal, because it’s illegal to be cruel to kittens in pretty much every jurisdiction in the U.S. The real issue here is the sale of such videos, not the creation thereof.
In any case, given the tiny market for such videos, it’s not worth doing violence to the first amendment in order to prohibit them.
April 20, 2010, 2:02 pmUrso says:
It’s also an extreme rarity. The point is, if you start shooting holes in the Constitution to deal with these extreme and awful rarities, you’ll end up with a Constitution that can’t protect those things that deserve protection.
I’d also add that actually stepping on a kitten as described is, and always will be, illegal. There’s no question there, and laws against animal cruelty (as opposed to its depiction) aren’t even touched by this opinion. Plus, you assume whoever made the video will likely be going to hell, which should be some solace.
April 20, 2010, 2:06 pmSara says:
It’s not.
April 20, 2010, 2:13 pmIlec says:
You will note that I stated that I understood the decision from an intellectual standpoint and my desire was for Congress to find a constitutionally valid way to deal with it.
April 20, 2010, 2:24 pmChris Travers says:
Interesting lineup too.
April 20, 2010, 2:24 pmIlec says:
Not sufficient solace by half.
April 20, 2010, 2:25 pmAnderson says:
Uh, “creating” such videos (in the U.S.) is effectively already illegal, because it’s illegal to be cruel to kittens in pretty much every jurisdiction in the U.S.
What Nieporent said. The videos are useful as evidence.
The real problem may be that animal-cruelty statutes are pretty much toothless in many states, partly because of the mice-killing example above, partly because no one wants a guy to be prosecuted for spanking his dog with a rolled-up newspaper.
Seems to me, if “obscenity” can be outlawed without sex going underground — which it hasn’t in these United States, by all accounts — then it shouldn’t be unconstitutionally vague to prohbit acts of gratuitous and shocking cruelty, which would cover the kitten example above, and maybe even mouse-stomping (where same is performed on mice purchased for that purpose, hence gratuitous, and not killing that damn mouse, where’d he go, THERE, stomp!).
April 20, 2010, 2:31 pmChris Travers says:
So, how would you address the following questions asked by Justice Scalia:
1) Can the US government ban a TV station which goes around the world documenting indigenous practices of human sacrifice?
April 20, 2010, 2:34 pm2) Can the US government ban depictions of bull fights?
Ilec says:
It seems to me that Justice Alito’s dissent would disagree on the videos as evidence point and agree on the inability of animal cruelty statutes to deal with the situation:
It is undisputed that the conduct depicted in crush videos may constitutionally be prohibited. All 50 States and the District of Columbia have enacted statutes prohib-iting animal cruelty. See 533 F. 3d, at 223, and n. 4 (citing statutes); H. R. Rep., at 3. But before the enactment of §48, the underlying conduct depicted in crush videos was nearly impossible to prosecute. These videos, which “often appeal to persons with a very specific sexual fetish,” id., at 2, were made in secret, generally without a live audience,and “the faces of the women inflicting the torture in thematerial often were not shown, nor could the location of the place where the cruelty was being inflicted or the date of the activity be ascertained from the depiction.” Id., at 3. Thus, law enforcement authorities often were not able to identify the parties responsible for the torture. See Pun-ishing Depictions of Animal Cruelty and the Federal Prisoner Health Care Co-Payment Act of 1999: Hearing before the Subcommittee on Crime of the House Commit-tee on the Judiciary, 106th Cong., 1st Sess., p. 1 (1999) (hereinafter Hearing on Depictions of Animal Cruelty). In the rare instances in which it was possible to identify and find the perpetrators, they “often were able to successfully assert as a defense that the State could not prove itsjurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in the State statute of limitations.” H. R. Rep., at 3; see also 145 Cong. Rec. 25896 (Rep. Gallegly)
April 20, 2010, 2:39 pmAnderson says:
I find it somewhat difficult to believe that the makers of the videos can’t be traced.
But then, I also find it difficult to believe that people are jacking off to crushed kitties. What a world.
April 20, 2010, 2:41 pmDilan Esper says:
It’s not
It’s the only exception based on its particular rationale. Other exceptions (threats, defamation, incitement, fighting words, etc.) are based on different rationales.
April 20, 2010, 2:47 pmChrisTS says:
Anderson:
I’m sorry to say you’ve added to my nausea with the “jacking off” image. I was sufficiently horrifed that anyone would do such things simply for the pleasure of being cruel.
Gecko:
I appreciate the worry about legal moralism. Unfortunately, in these cases, people are being allowed to choose rightly and failing to do so.
I wish people would choose rightly about theft, rape, and assault. I’m ok with backing up the Right with a few laws now and then.
April 20, 2010, 2:52 pmChris Travers says:
However, do we ban any depiction of theft or assault unless it lacks serious value? Rape maybe if it also appeals to the prurient interest, but the other two?
In oral argument, Justice Scalia asked about a hypothetical “Human Sacrifice Channel” travelling around the world showing indigenous human sacrifice acts. Or bull fighting.
I think it is fundamentally clear that this law was facially overbroad and I applaud the court for doing the right thing.
April 20, 2010, 3:08 pmChris Travers says:
In what way was this law limited to crush videos? The court actually avoided ruling on whether a ban on crush videos could survive strict scrutiny, and indeed I think a properly written one could be in line with current jurisprudence even though I would prefer even more protection for free speech than the courts currently afford us. In particular, one could simply create a subset of obscenity involving animal cruelty and add extra penalties to that.
That would cover videos aimed at sexual excitement based on seeing kittens crushed to death, right?
But the solution is not to say that prosecutorial discretion is the answer, or that all depictions of animal cruelty no matter how defined can be banned.
April 20, 2010, 3:12 pmBen P says:
It’s difficult for me to find a really logical connection, but I see the overbroadness argument as being similar to the “simulated child porn” case.
There the government argued that the videos could lead to illegal actions even if the videos themselves were nothing more than a sick fantasy concocted by someone with an animation program.
The argument breaks down because there the act wasn’t actually occurring, whereas in this case it (dog fighting) is occurring, just in a place where it happens to be legal.
But I think there’s an analogy between the law there allowing an overzealous prosecutor to charge a pornographer who makes up a young looking 18 year old to look like a child and the law here allowing an overzealous prosecutor to decide that a video of something otherwise completely legal (hunting was brought up several times) violates this law.
April 20, 2010, 3:14 pmAlan says:
How is it legitimate to punch a hole in the First Amendment and then say that only one category of harmful activities gets to pass through the hole? Either exceptions should be recognized on some principled basis to be applied consistently, or Ferber should be overruled. I’m not saying that anything harmful should be recognized as outside the scope of the First Amendment; I’m just asking for just a little consistency.
But the exception covers child pornography only. And child pornography only. It doesn’t cover all harmful-to-humans activity. It’s as if the Court tacked on the words, “except for child pornography” to the end of the Freedom of Speech Clause.
I can understand reading exceptions into the First Amendment based on what was understood at the time of ratification (so that “the freedom of speech” understood in 1791 can never be limited in any way, and whatever fell outside that freedom can be limited).
I can also understand (though I don’t agree with) carving out exceptions based on some compelling principle.
What I can’t understand is why specifically this one type of harmful activity exists in a First Amendment universe separate and apart from everything else, however harmful or evil. A principle that applies to one thing only isn’t a principle (of any kind legal or logical), and it’s not constitutional reasoning. I just think it’s judicial legislation to say, “We’re going to carve out an exception for one thing only because it’s so horrible–but other things that are perhaps less horrible, yet still incredibly horrible, will not have an exception based on a similar principle.”
Whether you interpret the First Amendment in the light of its historic understanding, the intent of the Framers, contemporary standards of decency, or whatever-the-heck, it just seems to me ridiculous that any philosophy of how to read the First Amendment is consistent with the Supreme Court tacking on an exception based on a principle that doesn’t cover anything besides child pornography.
Finally, I don’t see why recording Traci Lords is any more horrible than recording dogfights. I think it paints with too broad a brush to say that child pornography is worse. Yes, some child pornography is worse than some depictions of animal cruelty, but frankly I think there’s some serious competition between the two categories. As for the contention that this conduct is already illegal, good luck prosecuting it.
April 20, 2010, 3:18 pmAlan says:
With all due respect, I don’t see the connection to the First Amendment issue. It may very well be more important to protect humans than to protect animals (though I’d say it depends on the harm, as I kind of explained in the last paragraph of my most recent comment), but I don’t see why that justifies a First Amendment exception that applies special treatment of (i) child (ii) pornography. They won’t carve out an exception for anything else, even if it involves humans, and even if it involves children, who are subject to the protections of the law.
April 20, 2010, 3:22 pmAlan says:
Well, writing laws specifically for the protection of minors is one thing, but interpreting laws in that way is quite another. I don’t see any basis in the First Amendment (no matter what philosophy is used to interpret it) for interpreting that constitutional provision to treat child pornography as categorically different from every other horrible thing that happens anywhere in the world.
April 20, 2010, 3:24 pmuh_clem says:
Examples, please? Something that is so taboo that possessing pictures of it is illegal?
Child pornography is the only example that I can think of where merely possessing a picture or a video is illegal.
April 20, 2010, 3:28 pmCJColucci says:
Just every now and then I wish people would be allowed to do the right thing out of their own free will rather than be herded through their entire life by a labyrinth of laws.
I don’t even know what this means. Most of us do do the right thing out of our own free wills. Is it really only the laws against animal cruelty that keep you from torturing kittens?
April 20, 2010, 3:38 pmHouston Lawyer says:
Couldn’t many of the arguments for the constitutionality of this statute be applied to the outlaw of porn? Most porn is produced in violation of the laws against prostitution. We could reduce the allure of porn as an easy way to make money if we eliminated the producer’s ability to profit from it.
A court that allows a law to stand that requires all employers to monitor and suppress the speech of their employees could have found a way to uphold such a statute if it were narrowly tailored.
April 20, 2010, 3:39 pmChris Travers says:
The argument is that the harm involved in child pornography (particularly involving individuals under the age of sexual consent) is an issue where a child is victimized in the process of making the depiction and then the victimization continues if the individual later in life is re-exposed to the works. Furthermore the sale of such works drives demand for the actual crime. In these two ways it’s very different from the works at issue in this specific case, where no crime was committed in the process of making the works. In essence the court held that strict scrutiny was met in child pornography bans, even if it didn’t meet the strict definition of obscenity.
Furthermore child pornography laws only apply to actual cases where a child is actually used in creating the pornography. The statute at issue here would have been unconstitutional even if it was rewritten to address child pornography instead of crush videos and for the same reason that COPA was struck down.
Now, the major framework discussed here was not a parallel to child pornography but rather to obscenity. I personally think the obscenity exception needs to go, since it is not a harm-based exception but simply a community-standards-of-morality exception. The question is, do you treat consensual pictures which depict rape (but where all actors consent), S&M, etc. Constitutionally differently than you do depictions of animal cruelty. I think the connection is easier to see there. However, I think the real answer is to get rid of the obscenity exception, not to create new exceptions.
April 20, 2010, 3:46 pmChris Travers says:
Actually I think the way it worked was that the arguments for outlawing porn were used to defend the constitutionality of this statute. Hence the reliance on Miller….
April 20, 2010, 3:49 pmAnderson says:
I’m sorry to say you’ve added to my nausea with the “jacking off” image.
Sorry — I was inferring from the quote from Alito’s dissent, “These videos, which ‘often appeal to persons with a very specific sexual fetish ….’”
I’m not sure what seems sicker — people who watch them to get off on them, vs. people who just *enjoy* them in a non-sexual manner. The latter, I think, but it’s a close call indeed.
April 20, 2010, 3:54 pmAlan says:
Even if no crime was committed in the process of making the dogfighting video, we’ve now lost the entire statute; it wasn’t held unconstitutional merely as applied. Much conduct that this statute prohibited would indeed have involved animal cruelty that was a crime where committed. As for the sale driving demand for the crime, that’s also true of the statute that was struck down here as well.
In any case, this entire argument is based on a value judgment that child pornography is so much worse that it’s beyond the pale, and therefore gets its own independent exception that no other activity–not even activity harmful to humans, not even child humans–would get. I just don’t see the principled basis for that, especially if it’s not the government’s business to make us all virtuous, as Justice Scalia (of all people) said at oral argument. That’s not interpretation. That’s legislation.
For the Court to carve out a sui generis exception, and thus to make a judgment characteristic of a legislature amending a statute, does more to trivialize the First Amendment than anything else we see the courts do. It treats the First Amendment as common law that judges may change for reasons they find personally appealing. Using the child-pornography exception as an application of a principle that can be applied to something other than itself would be far more becoming of the judicial role.
April 20, 2010, 4:02 pmJ. Aldridge says:
I think the federal law violated the Congress’ limited powers and not the 1A. Of course, the court dares not to dispute Congress’ unlimited powers.
April 20, 2010, 4:02 pmUrso says:
Aldridge, you can rest easy in the knowledge that these videos were indeed shipped across state lines.
April 20, 2010, 4:09 pmAlan says:
But of course. After all, we’re talking about a court that thinks Congress’s power to regulate commerce among the states is broad enough to authorize Congress to regulate a person’s refusal to engage in commerce with someone intrastate. (Heart of Atlanta Motel v. United States; Katzenbach v. McClung.)
April 20, 2010, 4:09 pmBored Lawyer says:
Maybe I am naive when it comes to 1st Amendment law, but is no one troubled by this structure — certain speech is outlawed EXCEPT if it has “serious religious, political,scientific, educational, journalistic, historical, or artistic value.” And just who gets to decide THAT questions? The government in the first instance, or if you are willing to endure years of litigation, the courts.
If I were an artist or journalist who wanted to create something about animal cruelty (maybe an article re animal cruelty around the world, or a piece of visual art about man’s inhumanity to animal), I must say this structure of the law would definitely chill my speech.
April 20, 2010, 4:14 pmJ. Aldridge says:
Are you suggesting Congress has the power over speech and the press through the commerce clause? There is zip evidence of that. See here.
April 20, 2010, 4:21 pmAnderson says:
this entire argument is based on a value judgment that child pornography is so much worse that it’s beyond the pale, and therefore gets its own independent exception that no other activity–not even activity harmful to humans, not even child humans–would get
That is not a particularly weird value judgment, IMHO. Children are peculiarly vulnerable and defenseless, and forcing them into sexual acts — we’re not talkin’ Sally Mann here, folks — is peculiarly depraved.
Even taking “panties pix” exploits them — the kids may not be aware what’s happening at the time, but the memory may haunt ‘em later, to say nothing of the likelihood that every image ever created will someday be on the internet.
If we’re going to limit the First Amendment based on a taboo, child porn sounds principled enough to me. I’m happy to see the SCOTUS resisting the slippery slope.
April 20, 2010, 4:27 pmBored Lawyer says:
If I create a video and then sell copies interstate, that strikes me as interstate commerce which is subject to regulation under the Commerce Clause. Of course, there are all kinds of regulations Congress might or might not pass — trademarks, false advertising, antitrust, and, presumably, completely outlawing certain types of videos (e.g. “How to build a nuclear bomb in your basement in 4 easy lessons”) unless prevented by the 1st Amendment.
April 20, 2010, 4:30 pmAlan says:
Animals are particularly vulnerable and defenseless too. So are the very elderly. So are the infirm and the disabled. Do we get exceptions for those? How much more depraved is a Traci Lords video than a video of dogfighting? And why not an exception for depictions of brutal but non-sexual child abuse? Why not an exception for anyone of any age or physical condition who has been subdued by superior force or a weapon, since they’re physically helpless? What about a video of someone slowly cutting off a live prisoner’s nose or tongue or fingers or limbs or head? How is that so clearly much less depraved than watching a sixteen-year-old having sex that it’s okay to have categorically different First Amendment treatment? And how on earth is this hair-splitting values imposition consistent with any interpretation of the language of the the First Amendment?
Actually, if I remember correctly, in either Heart of Atlanta Motel or McClung–I forget which–the Supreme Court rejected a Takings challenge to the Civil Rights Act, in part on the ground that Congress’s commerce power is “plenary,” and not on the ground that no taking was committed. So plenary that it even trumps the Bill of Rights? According to the Supremes, yep. (That doesn’t make the Court right, of course.)
April 20, 2010, 4:39 pmJ. Aldridge says:
That ignores how nations and colonies regulated commerce with each other. Commerce was regulated through duties and imposts on imports. It also ignores the sole purpose for which to regulation of commerce among the states was inserted. But of course the court loves to ignore the truth as well.
April 20, 2010, 4:40 pmChris Travers says:
Probably true for a minority of the works. However suppose Congress passes a law:
Whereas a great deal of evil comes from speech and publication, therefore anyone who speaks or publishes anything, except as protected by the First Amendment to the US Constitution, shall be imprisoned for not more than 5 years.
And then every prosecution hinges on whether the speech was protected by the first amendment. I don’t think that would be acceptable because it would be entirely too vague.
The same is true here. The court did NOT say that a hypothetically narrow statute would be Unconstitional. It said that THIS statute was too broad to be Constitutional because a plain reading of it would ban depictions of bull fighting in the US, as well as delivery of any hunting magazines to DC. There’s a big difference here.
Furthermore, the videos that Congress was trying to ban might arguably already be illegal under obscenity laws.
April 20, 2010, 4:51 pmChris Travers says:
Note too that this did not provide a defence that the work as a whole had serious value, just that the material in question had serious value. Consequently I would think they could ask whether the photo you took of a bull fight in covering the controversy was, by itself, in violation of that law, not whether the whole magazine or even full article was. That’s scary.
April 20, 2010, 4:53 pmAnderson says:
Animals are particularly vulnerable and defenseless too.
Animals aren’t as valuable as people. Visit your local supermarket.
So are the very elderly. So are the infirm and the disabled. Do we get exceptions for those?
For the most part, they are able to consent. If there’s a market in “comatose porn,” that might be analogous to child porn and require a similar law.
April 20, 2010, 5:13 pmgecko says:
The government should not be deciding for individuals what is right and wrong as much as possible. There are of course exceptions if you infringe on another person’s freedom. Its unfortunate that someone on occasion decides he wants to stomp a kitten (who probably won’t be stopped by legislation that will do more to chill free speech). I’m far more concerned about the never-ending flood of laws that are eroding the freedom of humanity little by little and adding to the control of the powers that be.
April 20, 2010, 5:22 pmPBowman says:
Animals aren’t
asvaluablevalued as much as people. Visit your local supermarket.Fixed it for you.
April 20, 2010, 5:28 pmaces says:
First they came for the kitten-crushers….
April 20, 2010, 5:36 pmAnderson says:
Valuable, valued — same difference.
April 20, 2010, 5:39 pmjosh says:
Again, I can’t get my little brain about a split on the court that doesn’t meet pre-conceived biases. I mean, do I get to call Alito a socialist now b/c he so clearly is in favor of infringing our liberties?
April 20, 2010, 5:43 pmOrenWithAnE says:
What you think about the videos and whether you believe the government can ban them (and, secondarily, if it has that power whether it ought to) are separate matters.
You will be happy to know that the lady responsible for this video (I won’t link it but I’m sure you can find it if you are inclined) was identified and ostracized by the actions of her fellow citizens and without recourse to any legal process.
That is to say, by some miracle that we are still trying to understand, people managed to enforce social dictates without recourse to coercive government action.
April 20, 2010, 5:49 pmPBowman says:
Haha…yes. But there is at least a semantic difference between ‘valuable’ and ‘valued’. That valuable and valued things are extensionally equivalent is a substantive (and quite controversial!) claim.
April 20, 2010, 5:57 pmOrenWithAnE says:
Actually some court recently ruled that the State could not prohibit consensually-pre-arranged non-consensual sex (man, that’s awkward construction).
I can’t recall the details well enough to get google to find it for me though.
April 20, 2010, 6:07 pmAlan says:
If you just made a First-Amendment argument, I’m afraid I’ve missed it.
I wasn’t talking only about pornography, though I should’ve made that clearer. Then again, perhaps I made the mistake of assuming that my rather graphic description of a video showing a prisoner being mutilated would’ve driven the point home easily enough.
The point is that limiting the exception to child pornography means that activity affirmatively harmful to humans, whether children or adults, remains outside the scope of the exception.
That’s just nuts. The distinction isn’t a principled one. As I already said, why not depictions of non-sexual child abuse, or of non-sexual abuse of adults (like the mutilation examples that I gave and you ignored)–or even of videos depicting actual rape of adults?
April 20, 2010, 6:24 pmAlan says:
Oh, wonderful. Becoming unpopular–that’s condign punishment for the torture of man’s best friend. Who needs prison when some absolute horror of a human being can just be shunned?
April 20, 2010, 6:27 pmAnderson says:
Actually some court recently ruled that the State could not prohibit consensually-pre-arranged non-consensual sex
Was that in Canada? Here you go. (Maybe you saw it at How Appealing, like I did.)
April 20, 2010, 6:28 pmAnderson says:
Alan, you possibly have an exaggerated notion of how “principled” the law is. See EV’s recent post on how the First Amendment exceptions may now be limited to “stuff that’s been excepted for a good long while now.”
Legal principles are generally after-the-fact constructions, for the direction of lower courts and the amusement of law professors.
I am afraid I am not equal to the challenge of persuading you that child porn merits a First Amendment exception.
April 20, 2010, 6:31 pmAlan says:
Suppose we went back to a period in history when it was lawful to treat a certain group of human beings as if they were animals. Would that be relevant to the constitutionality of a hypothetical law prohibiting the commercial distribution of images depicting torture of members of that group? Would be it lawful for the subjugating race but unlawful for the subjugated race?
April 20, 2010, 6:32 pmAlan says:
Sarcasm off now?
What exactly is the relevance of the position that much of the case law is unprincipled? Is this the argument that if you can’t have a perfectly sterile operating room then you might as well do the surgery in a sewer?
April 20, 2010, 6:35 pmOrenWithAnE says:
She did lose her job and was forced to move out her home town as well.
Also, dog is man’s best friend, not cats. Sheesh.
April 20, 2010, 8:24 pmOrenWithAnE says:
No balancing test is every “principled”. The entire need for a balancing test is the fact that there are multiple principles that are in conflict and hence the Court must balance these compelling interests.
April 20, 2010, 8:47 pmGuy says:
I think the principled basis is that the Court doesn’t want Congress to try to exercise its power under the Exceptions Clause to prevent them from ever hearing a First Amendment case again.
April 21, 2010, 4:57 amNickM says:
I think you’re reading obscenity overly broadly. IMO the mocking descriptions of it as material that would leave you turned on and grossed out at the same time are actually on point – my guess is that you pretty much have to be at the level of graphic forcible rape depictions, scatological sex acts, or bestiality to be considered obscene under modern contemporary standards.
Nick
April 21, 2010, 5:06 amSCOTUSblog » Wednesday round-up says:
[...] — narrowing the reach of the bill — when he signed the statute the Court struck down; David Kopel characterizes the decision as a “big First Amendment win”; and Volokh provides a [...]
April 21, 2010, 11:03 amCJColucci says:
Gecko:
April 21, 2010, 11:20 amI understand the principle, even if hardly anyone outside the hothouse agrees with it, but my point goes to practice. Is it really the case that animal cruelty laws are part of a “never-ending flood of laws that are eroding the freedom of humanity little by little and adding to the control of the powers that be” when all but a handful of sociopaths refrain from torturing kittens whether such laws exist or not? In actual, practical terms, how much freedom is being eroded by laws prohibiting acts almost nobody sane and fit for human society would desire to perform?
OrenWithAnE says:
CJC, considering the recent bans on foie gras in some cities, I think it’s fair to say that those in favor of animal cruelty are interested in more than just the rare psychopath.
April 21, 2010, 3:38 pmOrenWithAnE says:
… those in favor of animal cruelty laws …
That’s a bad one!
April 21, 2010, 5:21 pmSara says:
In several areas of the law it is illegal to possess or maintain an illegal communication. You must give it to the police, or you are breaking the law.
April 22, 2010, 9:57 amChris Travers says:
I once saw meat marked “Baby” in a supermarket in Jakarta.
Ok, it was probably a typo since “Babi” would have denoted pork, but it was pretty funny nonetheless.
April 22, 2010, 2:26 pmChris Travers says:
The Supreme Court has also overturned laws banning animal sacrifice in this country…..
April 22, 2010, 2:28 pmChris Travers says:
But what’s the rationale then for allowing 17 year olds to consent to sex, but not be photographed doing it?
April 22, 2010, 2:29 pm