In a huge victory for free speech, the Supreme Court of the US today struck down a law that banned recording, possession or distribution of videos featuring animal cruelty. The Supreme Court concluded that as written, the statute is overbroad and limits all sorts of speech that the Court believes is protected by the First Amendment.
The decision also strikes down the notion of “serious value” as a legitimate criteria for determining if certain offensive speech is worth legal protection. However, as Eugene Volokh notes, by the same logic, the obscenity law should also go. Will that happen anytime soon? Volokh opines, and I agree that it is very unlikely the Court will go that far. Weight on tradition will probably prevent the Court from overturning Miller and declaring all obscenity legal.
This naturally still leaves the question: How can all this be reconciled with the use of “serious value” as part of the obscenity test? I think that as a matter of logic it can’t be. But the Court isn’t just after logic; among other things, it also gives some weight to tradition, and the obscenity exception is very deeply rooted in American law.
Still, I dare hope. For this court has given us Heller, Citizens United and Stevens — three great decisions in favor of liberty in a span of two years. So maybe, just maybe, it is not completely absurd to hope for a day when the Supreme Court declares the obscenity law unconstitutional. (And such an occurrence will surely make the NY Times readership’s collective head explode. After fiercely criticizing the ‘right-wing’ court for Heller, Citizens United, and to a lesser extent Stevens, they will be flummoxed about what to do with a ruling that the progressive base will applaud and the conservatives will despise. What fun!)
Update: A NY Times commenter, clearly in the minority, expresses exactly what I feel about matters of free speech.
Thank God. The point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting.
The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible.
Without such protections, core values of our civil society are at risk (namely, the free flow of ideas and information).
As a practical matter, it is also worth remembering that the tables can quickly be turned on what is ‘acceptable’ vs. ‘unacceptable’ discourse–in a matter of a few years, the good can become the bad and the bad can become the good. The 1st Amendment offers protections against these vicissitudes of social norms.
In short, despite the terribleness of dog fighting–and I agree, it is a terrible and immoral sport–this was an excellent decision. No, wait, let me change that a bit: BECAUSE of the terribleness of dog fighting, this was an excellent decision.