Althouse: The Supreme Court declines to add depictions of animal cruelty to the categories of speech that the First Amendment does not protect.

April 20, 2010

The Supreme Court declines to add depictions of animal cruelty to the categories of speech that the First Amendment does not protect.

Good. This doesn't — of course — mean that you can't punish acts of cruelty to animals.

ADDED: Here's the text of the opinion (which I don't have time to read at the moment). There is one dissenter: Justice Alito. The law that the Court struck down was a congressional response to "crush videos." In these, high-heeled women stepped on animals until they died, which some people find sexually stimulating.

47 comments:

Opus One Media said...: This goes down as one that I can see the reasoning and yield to higher wisdowm yet don't agree with it as anyone who benefits, even by depiction, of animal cruelty should be a pit bull's next meal.; 4/20/10, 9:49 AM
Anonymous said...: "Congress shall make ,no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It's pretty simple really.

No law means no law abridging even the most heinous of speech.

It doesn't say no law abridging speech except that speech depicting animal cruelty. It says no fucking law abridging any speech whatsoever.

It is still OK for Hollywood to depict the killing of Old Yeller.

We should be reminded that good speech needs no protection. Only heinous, offensive speech requires protection.

The US Supreme Court needs to address a far greater issue and that is the incredible length of time it takes before they are able to restore rights the US Congress strips from us every time they pass and begin enforcing a new law.

It is taking an average of eight years for them to restore rights the legislative is stripping with impunity deliberately because the court will not move quickly.; 4/20/10, 10:03 AM
Lem Vibe Bandit said...: We a pet chiwawa here where I live. He has a cage. Sometimes he squeals as if he is being tortured... doesn't like the cage very much.

For the purposes of law making "depicting animal cruelty" could be very difficult to define.; 4/20/10, 10:05 AM
Anonymous said...: Interesting notation in the decision: In one of the cases brought, the depiction of animal cruelty ruled illegal showed one animal (a wild boar) being hunted by another animal (a canid).

Hardly a sex "crush video" (an example of which has never been brought before the court.)

This was the Congressional camel trying to push its nose under another fucking speech tent so that later, it could bar hunting instructional videos.

Nothing more.

It's good to see our Congress getting fucking bitchslapped by the Supreme Court again 8-1.

Not even close.; 4/20/10, 10:13 AM
Anonymous said...: "For the purposes of law making "depicting animal cruelty" could be very difficult to define."

The government defined it by bringing these cases:

1) A dog fight
2) A wild boar hunt
3) A You-tube style video of a dog that attacked a pig on a farm.

So, by the government's definition, if you were on vacation, and happened to see two lions fighting each other, and you took a video of it, you'd be guilty of a felony.

Or if you watched a video of Opie Taylor catching a fish with Sheriff Taylor, you'd be guilty of a felony.

Congress is a fucking moron.; 4/20/10, 10:17 AM
Anonymous said...: Here is what your pals in government argued in front of an incredulous Supreme Court:

"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."

Get the idea this really isn't about crush videos?

The Court was simply incredulous, and warned the American people about this brazen attempt by their Congress to eviscerate the United States Constitution.

"As a free-floating test for First Amendment coverage, that sentence," wrote the Court, "is startling and dangerous."

So, I hope Bill Clinton will deign us with his fucking presence today to warn us about the "dangerous" and "startling" actions of our out-of-control government that were only stopped by the last court in the land.; 4/20/10, 10:25 AM
Anonymous said...: "I would also have to stop going to the all female donkey strip clubs."

How would Michael Steele raise funds for the RNC under such a restrictive speech regime?; 4/20/10, 10:33 AM
Anonymous said...: The Supreme Court ourt wasn't fooled for one second by what Congress was really trying to do through the back door.

" ... the Government makes no effort to defend the constitutionality of subsection 48 as applied beyond crush videos and depictions of animal fighting. ... the Government nowhere attempts to extend these arguments to depictions of any other activities - depictions that are presumptively protected by the First amendment but that remain subject to the criminal sanctions of subsection 48."

"... However "growing" or "lucrative" the markets for crush videos and dog-fighting depictions might be," the Court wrote, "... they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of subsection 48."

"We hold that subsection 48 is not so limited but is instaed substantially over-broad, and therefore invalid under the First Amendment."

The Court rightly recognized that the government was trying to end your subscription to Field and Stream, by alleging (but strangely not bringing to court) so-called "crush videos."

Like I said, the Congress is a fucking moron.

This was a slam-dunk case that frankly the court should have just reversed by quoting the First Amendment in its entirety.; 4/20/10, 10:41 AM
bagoh20 said...: "It says no fucking law abridging any speech whatsoever."

It would be cool if they actually wrote it that way. They thought they were being very clear, but you know lawyers and words can equal just about anything. doesn't the real thrust of legal argument boil down to simply twisting words?; 4/20/10, 10:42 AM
Anonymous said...: They thought they were being very clear, but you know lawyers and words can equal just about anything.

What's amazing is how the Court went out of its way to bitchslap the idiot attorney who argued that speech was only protected by the First Amendment to the Constitution if it could be shown to be balanced by its worth in society.

I can't find this retard's name yet. (Anybody know who argued this case before the Court?)

What law school did this fucking retard go to?; 4/20/10, 10:47 AM
Anonymous said...: Ah, here's the retard who argued that speech is only free if the government deems it of societal value:

Neal K. Katyal, of Georgetown Law School.

(Parents, take note: This is the sort of moronic education you're going to pay for at Georgetown only to watch your children lose cases before the Supreme Court, which will then bitchslap your kid in their written opinion - a document that will be written in books forever."

Figures. Ivy League. Bunch of fucking morons.; 4/20/10, 10:54 AM
rhhardin said...: Julia Child's crust videos are saved too.; 4/20/10, 11:00 AM
rhhardin said...: Shakespeare is saved as well, pulling wings off flies.; 4/20/10, 11:02 AM
rhhardin said...: News flash from the media: history was made with four women in space at once.

That's an experiment that needed to be done, I guess.; 4/20/10, 11:05 AM
Richard Dolan said...: The SCOTUS treats the list of speech unprotected by the First Amendment as a closed set of historically determined exceptions (obscenity, fraud, incitement, speech integral to criminal conduct), while leaving open the (theoretical) possibility that there might be other examples of unprotected speech yet to be discovered. Don't hold your breath.

The gov't tried to defend the statute by (a) quoting older cases saying that speech having no redeeming social value doesn't get First Amendment protection; (b) saying that this statute is saved by its 'savings clause,' exempting from its prohibitions any speech having 'serious' value; and (c) claiming that the gov't, as a act of prosecutorial discretion, will only enforce the statute in 'extreme' cases where the material depicts plainly cruel conduct.

The majority brushes aside the SCOTUS's prior statements about "no redeeming social value" as language merely descriptive of the historically determined exceptions, rather than proscriptive language limiting the First Amendment's reach. That's fine if you want a sound bite, but really amounts to saying that there is no compelling justification for the historical exemptions other than that they've always been accepted. In form that's a kind of originalist argument, without all the citations to 18th century treatises, dictionaries and the like; in substance, it's a recognition that life doesn't permit an absolutist application of the First Amendment coupled with a refusal as a matter of policy to accept new exceptions.

As for the "serious" savings clause, the Court dismisses the gov't's argument by saying that it had to take the "serious" criterion seriously -- which leaves the statute overbroad because most speech is not serious at all. That's a rare bit of commonsense -- it's nice to see the SCOTUS say that the First Amendment covers silly chatter just as much as it does the Great Books.

The majority is scathing in its rejection of what it calls a free-floating cost-benefit approach to the First Amendment (its description of the gov't's position) -- i.e., speech is protected whether or not Congress deems its value to be outweighed by its harmful effects. It is equally dismissive of the gov't's argument that prosecutorial restraint can save an overbroad statute -- the First Amendment doesn't involve a concept of noblesse oblige, says the Court.

Perhaps the most interesting aspect of the decision (apart from the zingers, of which there are many), is the Court's refusal to dispose of the case on an 'as applied' basis. They offer a footnote (!) suggesting that an 'as applied' challenge wasn't preserved, but that argument is neither convincing nor compelling. For its own reasons, the Court wanted to swat down this statute and it did so by finding it facially overbroad.

All in all, not a bad day. I wonder if this will be Stevens' sway song in the 'expansive opinion striking a blow for constitutional freedoms' sense.; 4/20/10, 11:06 AM
AllenS said...: What's the proper use of a cigar? Can a cigar be sexually stimulating?; 4/20/10, 11:11 AM
Patm said...: How interesting that Justice Alito, enemy of the left, seems to take the most "progressive" view, here.; 4/20/10, 11:15 AM
David said...: Women in high heels stepped on animals until they died . . .

Yuck, yuck, yuck.

Seems to have gotten New Ham fired up though.; 4/20/10, 11:17 AM
Original Mike said...: 8 - 1? Color me surprised (and pleased).; 4/20/10, 11:30 AM
campy said...: If women in high heels crushed the heads of racist teabagging seditionists, that would be a very good thing.; 4/20/10, 11:35 AM
Scott said...: IANAL, but it seems that Alito's dissent was, in part, that the Third Circuit should have first determined whether the videos were Constitutionally-protected speech before deciding whether the statute itself was constitutional--that the Third Circuit wimped out.; 4/20/10, 11:44 AM
David said...: campy said...
"If women in high heels crushed the heads of racist teabagging seditionists, that would be a very good thing."

Yeah--let's televise it. Obama can be interviewed at half time.; 4/20/10, 11:54 AM
halojones-fan said...: Please let's don't crap all over Katyal. I'm pretty sure that he, too, recognized the dog of a case he'd been handed, and he made a decent go of it. It isn't his job to say "this is a stupid thing and you're stupid for doing it", it's his job to argue the case.

Besides, as Richard Dolan points out, the case history for this sort of thing is pretty much all case-by-case exceptions, which means you don't know whether or not the Court will see a restriction as acceptable until you argue the case.; 4/20/10, 12:09 PM
Skyler said...: This is a good ruling which is in the finest traditions of American jurisprudence, which is sadly unusual nowadays.

Bull fighting, bull baiting, and even dog fighting and cock fighting were at one time all considered quite respectable. Modern sensibilities tend to disfavor such sport, but this should not silence all debate of the subject. Thus, depicting sports that contain what is now considered animal cruelty can in fact be political speech, and this is precisely what the first amendment protection of free speech was meant for.; 4/20/10, 12:12 PM
Sigivald said...: What New Ham said, "... a sex "crush video" (an example of which has never been brought before the court.)" jibes with my recollection.

Did any of those ever actually exist (and if so was it more than a handful?), or are they as more or less mythical as the "snuff film"?

Was this entire waste of time, money, and a man's life for years of legal trouble and appeals all over a stupid moral panic over a non-issue?

Does Congress really wonder why they're not taken seriously?; 4/20/10, 12:20 PM
Anonymous said...: "Women in high heels stepped on animals until they died ..."

This is, of course, easily dismissed bullshit. And the court saw right through it.

The government cannot even find such a video to bring to court, but has its officers of the court commit perjury in front of the Supreme Court by alleging there is a "substantial growing market" in such videos.

Horse hockey.

The Democrat Party don't want people to own guns - because they're afraid we'll kill them if they try to govern us the way they aspire to.

It's as simple as that. First step is to outlaw depictions of hunting (which this law attempted to do). Then outlaw actual hunting as cruel. Then there won't be any need for rifles, so they can be outlawed. Handguns would be next. Then gulags and a New American Holocaust led by the Jew hater Barack Obama.

It's a good thing there are some people on the Supreme Court can see through this bunch.; 4/20/10, 12:39 PM
Anonymous said...: "he, too, recognized the dog of a case he'd been handed, and he made a decent go of it."

He deserves much scorn.

If you dont' have a case, then fucking pound the table.

Don't suggest to the Supreme Court of the United States that free speech is only free if the government deems it of societal value.

That's dangerous.

It's not just stupid and unethical and moronic.

The court said it is "dangerous."

And they're right.

Wars have been lit for much less.; 4/20/10, 12:43 PM
Anonymous said...: In these, high-heeled women stepped on animals until they died, which some people find sexually stimulating.

As always, I'm thankful for having a nice wholesome fetish.

Peter; 4/20/10, 12:53 PM
Alex said...: Randi Rhodes usually says that conservatives are a bunch of weird perverts who get off on animal crush videos.; 4/20/10, 12:53 PM
Anonymous said...: "Randi Rhodes usually says that conservatives are a bunch of weird perverts who get off on animal crush videos."

That's just typical Democrat Party projection.

Whatever your enemy accuses you of doing, it's because they're doing it.

This is all about their fear of our guns and our ability to take them out.

Democrats - as evidenced by Bill Clinton peeing in his pants yesterday - are terrified of us being allowed to do shit like carry openly, or vote.

So, they use the Bureau of ATF and the FBI to snuff out the crazy religious nuts with their guns and their brat kids, then complain when someone like Tim McVeigh gets fed up with their fucking crap.

The Supreme Court is the only thing standing between us and them, frankly, by stopping them from getting their wish.; 4/20/10, 1:00 PM
rhhardin said...: Vicki Hearne goes into the problem with pit bull fights, namely that the pit bulls like it, called gameness; and it's the source of many of the breed's virtues, like gentleness.

I think chiefly in Adam's Task.

Yes, here.

Probably also in _Bandit_.; 4/20/10, 1:01 PM
Joe said...: This comment has been removed by the author.; 4/20/10, 1:16 PM
Methadras said...: I think the larger question is, should depictions of death be it human or animal through the visual medium be protected speech? Personally, I'm of two minds on this. For me it is all based on context. Is it the actual depiction that matters or is it the end result of that depiction that is the issue?; 4/20/10, 1:41 PM
Der Hahn said...: Whenever I see a case like this, it makes me wonder, are there no laws banning the underlying activity, such that you have to make speech involving the activity illegal? If some dude goes out of his way to video tape a dog fight, you are going to prosecute him for recording the fight? Why not simply prosecuting the people actually causing the mistreatment?; 4/20/10, 1:44 PM
Methadras said...: As a man who loves animals, I'm actually a little surprised that SCOTUS stayed away from making a decision on these types of videos. They certainly have had no issue with certain types of pornography, so why not a clear case of animal cruelty? Did they see crush videos as a function of pornography because they confer sexual gratification to some?; 4/20/10, 1:48 PM
Trooper York said...: The only downside is that Sarah Jessica Horseface will still have a career.; 4/20/10, 1:54 PM
halojones-fan said...: "He deserves much scorn.

If you dont' have a case, then fucking pound the table."

Oh, come on.

I'm sure it's nice being you.

Who has such a wonderful life that you can afford to wreck it.

Over a silly matter of principle.

I mean, let's be realistic here.

Nobody except a few nutty Congressmen took this seriously.

This was nothing but an opportunity for grandstanding.

By EVERY side.

It's an easy chance to deploy rhetoric over a slam-dunk issue.

Normally, the Supreme Court has to be circumspect in its statements.

It knows they will be quoted and cited and dissected and used as fundamental underpinnings of contract law.

But here's one where they can just really cut loose, and they do.

Also.

This isn't a fucking stage performance.

Stop with the "every sentence is its own paragraph" thing.

It isn't dramatic.

It isn't interesting.

It just makes you look like a twink.; 4/20/10, 2:13 PM
holdfast said...: Interesting - here's the rundown on "brilliant Georgetown Law Professor Neal Katyal":

http://abovethelaw.com/neal-katyal/

And of course he defended Gitmo detainees - I guess he likes SOME civil rights - though now he "prosecutes" them:

http://www.politico.com/blogs/joshgerstein/0110/A_Gitmo_bar_turncoat.html; 4/20/10, 2:21 PM
Revenant said...: They certainly have had no issue with certain types of pornography, so why not a clear case of animal cruelty?

The "obscenity" loophole is basically grandfathered in. If the courts were starting from scratch today, it wouldn't be held constitutional to ban obscene works either.; 4/20/10, 3:17 PM
Anonymous said...: "... wunderkind Katyal has been tapped to serve as Elena Kagan’s right-hand man ..."

Heh.

Brilliant, this bunch of fucking wunderkinds, huh?

I guess when Kagan is installed onto the court, the wunderkind Katyal can expect to lose his cases by a 7-2 margin.

Country is in the best of hands.

http://abovethelaw.com/neal-katyal/; 4/20/10, 3:20 PM
Anonymous said...: "If the courts were starting from scratch today, it wouldn't be held constitutional to ban obscene works either."

Judging by what I see on the internet, that's about right.

They're not even going to try to bring a case now afraid the court will remove all doubt.

And they would.

No. Law.; 4/20/10, 3:22 PM
I'm Full of Soup said...: Trooper:

You should get Gabby in some high heels and pop some small animals. I bet she'd make it look easy like popping a balloon!; 4/20/10, 3:37 PM
Penny said...: This may be all well and good when you have your constitution hat on, but let me know how you feel about the likely future increase in animal crush videos and their like.; 4/20/10, 4:12 PM
Anonymous said...: "... but let me know how you feel about the likely future increase in animal crush videos and their like."

There is no such thing as "animal crush videos" and their like.

I defy you to point me to one, or prove to me that you've ever seen one.

They are, like "snuff films," an urban myth.

And the reason that I know they are an urban myth is that the government is unable to produce one in a court of law to prove that they actually exist - much less that there is a "growing market" for them.

Neal K. Katyal committed perjury before the Supreme Court of the United States by alleging such evidence exists in his brief.

He cannot produce a single "animal crush" video, or prove that such films are routinely available in the market.; 4/20/10, 5:53 PM
Eric said...: Did any of those ever actually exist (and if so was it more than a handful?), or are they as more or less mythical as the "snuff film"?

Oh yes, they exist. There was a woman prosecuted in Riverside county back when I lived there for using high heels to crush hamsters and then putting the videos on her site.

Now, I don't know how often that occurs, but it does occur.; 4/20/10, 6:15 PM
bagoh20 said...: Anything that is possible for a human to do has been captured on video or will be shortly.

Holding a camera should not be illegal unless you are using it to beat someone. Prosecution should be limited to the illegal act not the viewing of it. We have video of the killing of thousands on 9/11 or hundreds of thousands at Hiroshima. After that, how can we make a video of a gerbil dying illegal?; 4/20/10, 7:11 PM
Kirby Olson said...: Hiroshima was an act of war and WAS meant to shock the Japanese into surrender. It did this.

There is no higher principle at stake in crushing a gerbil for the (demented) pleasure of it.

I had never heard of this law, or even of the practice that it sought to ban. I do think first amendment should win out here, as it otherwise bans the satirical description of such practices, too.

I have no idea what happened to people. They must be completely numb to do something like this.; 4/21/10, 11:30 AM