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Reaffirming free speech

The Supreme Court, in a dogfighting case, declares a 1999 federal law unconstitutional.

April 21, 2010

A nearly unanimous Supreme Court on Tuesday delivered a resounding reaffirmation of the importance of free speech in a case arising from the sordid "sport" of dogfighting.

As is often true in 1st Amendment cases, the victor in this decision is an unsympathetic figure. Robert Stevens, a Virginia pit bull breeder, advertised videos portraying dogfights, as well as an "instructional video" on using pit bulls to hunt boar. Stevens was sentenced to 37 months in prison for violating a federal law criminalizing the creation, possession or sale of a "depiction of animal cruelty."

The 1999 law was inspired by the existence of fetishistic "crush videos" that portray women stamping on animals, but its language was way too broad — "a criminal prohibition of alarming breadth," according to the court, and thus unconstitutional.

Writing for himself and every other justice but Samuel A. Alito Jr., Chief Justice John G. Roberts Jr. suggested that the law could criminalize depictions of hunting or of the slaughter of livestock. (Roberts indicated that a narrower statute targeting crush videos might be constitutional — a suggestion quickly endorsed by animal rights activists.)

Although this case focused on a fringe phenomenon, the reasoning of the decision is significant for the future of the 1st Amendment. The chief justice's eloquent opinion suggests that, whatever other precedents may be at risk under the Roberts Court, landmark decisions protecting free speech are secure.

First, Roberts rejected the argument that the court should declare depictions of animal cruelty totally outside the protection of the 1st Amendment, part of a narrow category of excluded speech that includes obscenity and child pornography. Second, he embraced the idea of striking down laws that limit free speech on their face, rather than considering only specific violations — a practice that discourages Congress and state legislatures from passing unnecessarily sweeping laws that might chill expression.

Tuesday's decision accords with past 1st Amendment rulings in another way: The majority comprised both liberal and conservative justices. That was the case, for example, with the 1989 decision extending 1st Amendment protection to the burning of the American flag as a political protest.

As Roberts observed, the existence of the 1st Amendment "reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs." It is reassuring that this Supreme Court, like its predecessors, understands that.

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