On April 20, 2010, the Supreme Court scored a victory for 1st Amendment restrictions on government intrusion into our right to free speech and prosecutorial discretion, in US v. Stevens (2010). Granted, the decision, written by Chief Justice Roberts, allowed the seller of dog-fighting videos to continue that practice, of which I do not condone personally, but within the 8-1 decision (Justice Alito was the lone dissent) were a few gems. Some conservatives think this was a poor decision, but if modern conservatism is going to be a champion of individual liberty, it must be the leading voice in decisions like this. Remember to examine the opinion objectively, and not to allow your personal feelings to cloud the logic behind this opinion.
A little background: Robert J. Stevens sold videos of pit bulls (lovely dogs with the right owners) engaged in fights and hunts. Presumably, he did not produce these videos; rather he was selling content that had been created by others. At issue was 18 USC § 48, "Depiction of Animal Cruelty." The original intent of the legislation was to criminalize "crush videos," a particularly twisted sexual fetish. Historically, common law and constitutional jurisprudence have allowed for certain well-defined and narrowly limited restrictions on free speech. The government was contending that depictions of animal cruelty should be added to that list.
The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” Reply Brief 12, n. 8, and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “‘legislative judgment....'"
Essentially, the government is arguing that new categories of speech can be restricted based upon the public will through legislation. Of course, we are all aware that legislatures have been known to pass bad laws. The idea that Congress could carve out exceptions to the restrictions on government intrusion upon our rights is rather frightening.
The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad-hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
I am amazed that the liberal-wing of the court signed on to this opinion without a concurrence. The decision was rule-based, rather than policy-based. Policy decisions exemplify the progressive attempt to interpret the Constitution as a "living, breathing document." Balancing tests often fall in favor of policy, rather than rules. Chief Justice Roberts points out that the restrictions on government in the Constitution already took into account the "social costs." In other words, better to allow an individual to sell dog-fighting videos than to allow the government to carve out exemptions to the 1st Amendment willy-nilly.
The decision also took into account prosecutorial discretion, which allows the government to decide which cases to prosecute.
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.”
The legislation was passed for a specific purpose, and the executive branch promised to prosecute based upon that specific purpose. However, the broad-based language of the legislation allowed the government to cast a wider net. Laws have unintended consequences, and an unwary public can be caught up by those unintended consequences. Thankfully, SCOTUS stopped another government attempt to expand its powers at the expense of individuals. While the particular subject-matter was unpleasant, the logic behind the decision was sound; something to keep in mind with the upcoming nomination.
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