Earlier this week, I noted that the Supreme Court of the United States has released it's decision on the Case U.S. vs Stevens. I posted earlier this week, as soon as I heard the news, but before I had a chance to read the full decision. Now, after having some time to spend with the full decision, as well as reading the thoughts of others, I wanted to clarify some stuff for people who haven't had the opportunity to read the full decision.
For starters, contrary to what most of the media reports have said, SCOTUS did NOT rule that dog fighting videos and crush videos were protected under the 1st Amendment.
They ruled that the federal law that was being used in this case was substantially overbroad and included far more types of "speech" than just dogfighting videos and crush videos. They are right in that decision, and we should applaud their decision.
And we should also make steps to create a more narrow law that -- based on what was written in Alito's dissenting opinion - was left open for discussion by SCOTUS.
First, let's talk about the law that was ruled Unconstitutional.
The law that was struct down made it illegal to sell or possess any visual or auditory depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed" where the "creation, sale or possessoin takes place".
A separate clause exempts depictions with "Serious religious, political, scientific, educational, journalistic, historical or artistic value."
The case vs Stevens was centered 100% around his creating and making of dogfighting videos and the testimony included only reasoning why this activity should not be protected by the 1st Amendment. However, the court noted that by the way the law was written, it could be applied to a variety of different types of hunting videos as different types of hunting are not all universally legal in all 50 states (think in terms of hunting with crossbows, bows, hand guns, and hunting of different types of animals which may be legal in some states, but not others).
Because the exceptions clause (particularly centered around the word "serious") was very narrow in scope and thus, allowed for way more types of conduct to be applied as not protected under the 1st Amendment than what the prosecution and lawmakers intended. According to the ruling: "there is simply no adequate reading of the exceptions clause that results in the statutes banning only the depictions the Government would like to ban.....To read (the law) as the Government desires requires rewriting, not just reinterpretation."
The court's decision seems like the correct one. So what do we do now? The court's ruling has left an opening for us to create a new law that would be narrowly focused on dogfighting videos and crush videos. In fact, there is already some movement in drafting such legislation.
Creating areas that are not protected by the 1st Amendment is not new. While the 1st Amendment remains probably our most protected amendment (and with good reason), the courts have historically allowed for certain areas to be restricted -- including obscenity (child porn), defamation (slander), fraud, incitement (yelling "fire" at a theater) and speech integration to criminal conduct (bomb/death threats).
In Alito's dissent, he notes many reasons why SCOTUS would potential rule a law that narrowly targeted dog fighting and crush videos would be considered an exception to 1st Amendment protection -- which include:
1) the videos show footage of activity that inflicts a severe injury
2) the activities are illegal in every state in the U.S.
3) targeting the videos can reasonably used to target the underlying crimes that they depict
4) The value of the videos to society would be "exceedingly modest" and such value would be "overwhelmingly outweighted by the evil it restricted."
5) The government has a compellling interest in preventing the torture depicted in the videos.
With all respect to the 1st Amendment, I would be happy to see a well-crafted, narrowly targeted law on just Crush videos and dogfighting videos and see if it would hold up under SCOTUS scrutiny.
It looks like we may well soon get to see it.
For more points of views (for thoughts on both sides):
Dogfighting videos = free speech, Part II -- well done from Chistine at Bad Rap
Supreme Court Listens to NRA in Striking Ban on Crush Videos - Animal Law Coalition
For those of you who are upset - Raised by Wolves
US v Stevens, The Post Mortem - Animal Blawg