“In last week's decision in United States v. Stevens, Justice Alito was alone in arguing for the constitutionality of a federal law barring the commercial creation, sale, or possession of certain depictions of animal cruelty. Congress apparently enacted the law to stop the distribution of ‘crush videos,’ in which a woman slowly crushes a small animal to death with her feet; these videos apparently appeal to a small group of people with a bizarre sexual fetish.
But the Supreme Court held the law violated the rights to free speech and expression because it covered all sorts of protected content, like some hunting videos. Chief Justice John Roberts, writing for a majority of eight, strongly rejected the idea that the law was constitutional because prosecutors would in fact prosecute only the really irredeemable videos involving ‘extreme cruelty’ without social, scientific, or artistic merit: ‘The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.’
Justice Alito, writing for himself alone, dissented. He said the court should read the law narrowly to apply only to those videos showing extreme cruelty. He trusted the government to prosecute responsibly. After quoting a particularly graphic description of a crush video involving the awful killing of a kitten, he analogized the law to one protecting against depictions of child pornography: ‘Preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos. … But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos.’”
—Professor Richard L. Hasen, “Crush Democracy but Save the Kittens: Justice Alito's double standard for the First Amendment,” in Slate.
I loathe Samuel Alito and his brand of jurisprudence that confuses conservative Republican ideology, circa 1985, with actual law. Or, more accurately, that attempts, in case after case after case, to impose that ideology upon the law.
And, for (very) personal reasons having, I assure you, nothing at all to do with crush videos, I was absolutely elated to read Roberts’ opinion in Stevens—the strong, clear, eloquent language about the First Amendment’s protection of speech—and (for those personal reasons) the perfect timing of the release of that opinion.
But I am also an animal lover whose favor nonprofits are ASPCA and its international counterpart, WSPCA, and never sees a collection box for the local animal shelter without dropping in a dollar or two—and who keeps her copy of the book Merle’s Door at her bedside, like many people keep a bible.
So I had to fight the little pang of discomfort I felt that crush videos are, for the moment, not illegal.
Roberts and seven justices who joined his opinion are right, of course, that no one should have to rely upon the noblesse oblige of prosecutors (or any other government official) to allow the exercise of the First Amendment right to protected speech, and that the Fifth and Fourteenth Amendments’ due process clauses require that statutes be sufficiently precise to place the public on notice of what, exactly, the statute prohibits; the idea that judges can rewrite a criminal statute—or any statute whose purpose is to proscribe behavior, whether speech or actions—is anathema to the very concept of due process, not to mention the concept of equal protection of the law incorporated into those procedural Amendments.
And Alito is, in my opinion, right that the truth that the protection of animals against gratuitous cruelty is not as important as the protection of children against sexual or other physical abuse, it, like depictions of child sexual abuse, is important enough to merit a First Amendment exception, under the same justification as the exception regarding child porn: It photographs what actually occurred, and therefore requires an act in order to enable the speech.
This premise will be tested when statute that Congress is currently drafting is enacted and tested in court. And in that round in court, I hope Alito’s view prevails.