In the end, the Supreme Court’s consideration of a Federal law barring depictions of animal cruelty wasn’t even close:
WASHINGTON — In a major and muscular First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.
Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said the law created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”
The decision left open the possibility that Congress could enact a narrower law that would pass constitutional muster. But the existing law, Chief Justice Roberts wrote, covered too much speech that depicted lawful activities.
The law applied not to the underlying activity, but to recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” It did not matter whether the conduct was legal when and where it occurred; under the law, what mattered was whether the conduct would have been illegal where the recording was sold.
The government argued that such depictions were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion, saying that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”
As a general matter, Chief Justice Roberts wrote, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh its costs.” He continued, “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Roberts primary concern, it seems, was the fact that the law was clearly overly broad:
“Jurisdictions permit and encourage hunting, and there is an enormous national market for hunting-related depictions in which a living animal is intentionally killed,” Roberts said. “An otherwise-lawful image of any of these practices, if sold or possessed for commercial gain within a state that happens to forbid the practice, falls within the prohibition of [the federal law].”
During oral arguments in October, the justices offered a number of wide-ranging hypotheticals over what the law could forbid, including: fox hunts, pate de foie gras from geese, cockfighting, bullfighting, shooting deer out of season, even Roman gladiator battles.
This strikes as another one of those situations where you just have to ask anyone who disagrees with the Court — What part of “Congress Shall Make No Law” Don’t You Understand ?
As much as the speech itself might be distasteful, the Court got this one right.