NOTE: I hope to periodically post on pending cases before the Court to give those who don’t follow the law an idea of what is going on. I will try to keep things in English but do need to use some legal language to explain what is going on with cases. I’d appreciate feedback as to whether my writing is too technical or if it is helpful

Thanks.

The late Justice Hugo Black was known for being absolutist when it came to the First Amendment. His policy was that if the Constitution said ‘Congress shall make no law’ then it means just that, that the Congress can make no law which abridges freedom of speech.

While the court has not as a whole been quite so absolutist in their view, they have been very reluctant to declare that entire categories of speech are outside the protections of the 1st amendment. The last time they did so was in 1982 when they ruled that child pornography was not protected (see New York v. Ferber).

The decision here was based on the fact that the government has a very compelling interest in protecting children from sexual abuse and that child pornography is directly connected to such abuse. It was such a compelling interest that the ruling was unanimous with even liberals like Marshall, Brennan and Blackmun upholding the limits.

Otherwise most obscenity type cases are governed by Miller v. California, a 1973 case which set the standard for what qualifies as obscenity and thus can be regulated by the government without violating the 1st Amendment. Those standards are

• the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest and that
• the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law and that
• the work, taken as a whole, lacks serious literary, artistic, political or scientific value

This case was a 5-4 ruling with four Justices ruling that, at least to some degree, obscenity is protected by the First Amendment, although even the dissenters would probably support laws restricting access to the material (IE keeping it out of the hands of minors, limiting use to adults, etc).

This week they are taking up the case of United States v. Stevens, which involves a law banning the production and distribution of animal cruelty videos. I don’t think there are many people who deny that Mr. Stevens is a disgusting person. If you want more details on just how violent the videos are you can do a web search but I’d rather not discuss the specifics here.

The issue in this case however is if this law goes too far and in particular the issue of how to apply the Miller rule to this kind of situation. For example it was pointed out that there are some anti cruelty videos from the Humane Society that show much more violent images, and yet the purpose there is to prevent abuse rather than to encourage it.

Justice Ginsburg asked whether this law should apply to things like cockfighting or bullfighting, and if so would that make the law too broad (so far it has only been applied to dogfighting).

Efforts by the government to connect animal cruelty to child pornography (and thus tap into the Ferber standard) were soundly rejected by the Justices.

Obviously it is impossible to predict anything but the only Justice who did not express serious doubts about the law was Justice Alito, the rest of the court seemed doubtful (and even he questioned the fact that the law had been applied only to animal fighting videos). The theoretical purpose of the law was to restrict so called ‘crush’ videos which had women abusing animals for sexual stimulation purposes.

 I would thus guess that we are going to have at least five votes to strike the law, and possibly as many as eight.

While I find animal cruelty to be disgusting, I tend to agree with the sentiment that this law is too broad and so it needs to be struck down.