A Victory for Free Expression...Court Upholds Unpopular Expression

The Washington Post  reports on the latest victory for free expression:

The Supreme Court struck down a federal law Tuesday aimed at banning videos depicting graphic violence against animals, saying that it violates the constitutional right to free speech.

Chief Justice John J. Roberts Jr., writing for an eight-member majority, said the law was overly broad and not allowed by the First Amendment. He rejected the government's argument that whether certain categories of speech deserve constitutional protection depends on balancing the value of the speech against its societal costs. 

"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," Roberts wrote. "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 law was passed in 1999 in an attempt to prevent the sale of "crush films"--fetish films in which animals are crushed. The law, however, is so overly broad that it could be used against hunting videos and mere depictions of violence toward animals.

Writing for the Court, the Chief Jusice noted that as written the law “creates a criminal prohibition of alarming breadth.”  The SCOTUS blog reported, "Noting that the government had given assurances that it would enforce the law only against commercial portrayals of “extreme cruelty,” the Chief Justice wrote that the Court would not uphold an unconstitutional law “merely because the government promises to use it responsibly.”"

The Cheif Justice is right to call into question reliance on responsible usage of the law. Any chance for abuse must be nipped in the bud when its knowledge arises. 

It should be noted that the Court's ruling was not against the ability of the federal government to legislate against animal cruelty. Rather, the ability to ban videos depicting such was called into question. The Court thankfully took the right stand refusing to further gut First Amendment protection.

It has long been noted that the First Amendment is not needed to protect popular expression. Rather, it is the unpopular which warrants protection. Indeed, those of us who value liberty are oft in need of the First Amendment's protection.

I find animal cruelty despicable, but so is the violation of First Amendment protection. If states want to enact laws against cruelty to animals, that is their prerogative. But banning a form of expression is outside the pale of acceptability. If we are to maintain a free society, let us fix these problems by changing the culture, not by changing the law.

In his magnum opus On Liberty, John Stuart Mill wrote, "Strange it is that men should admit the validity of the arguments for free speech but object to their being "pushed to an extreme", not seeing that unless the reasons are good for an extreme case, they are not good for any case." Write he was then, and so he is today.