Free speech in a big old goofy world
The Supreme Court stands up for a noxious form of free speech
Free speech in a big old goofy world
Dick Polman, Inquirer National Political Columnist
In these highly polarized times - when every crucial U.S. Supreme Court decision seems to hinge on a 5-4 vote, when every Supreme Court vacancy prompts the ideological activists to spew volcanic ash - it was downright refreshing yesterday to see the berobed brethren rule on a major free-speech case with near unanimity. Let us pause to celebrate.
John Roberts and Antonin Scalia on the same side as the liberals...hey, in America, anything is possible. What's arguably most striking is that they were all in sync on a sensitive First Amendment issue, one of those cases where jurists are virtually compelled, as a matter of constitutional principle, to defend a repulsive form of free expression.
You may have read about this case already; apparently there are some people on this planet who enjoy watching "crush videos," in which stiletto-heeled women stomp on small animals, such as hamsters and kittens, crushing them unto death. What can I say. As the folkie songwriter John Prine sings, "It's a big old goofy world."
Anyway, when these videos became an Internet fad back in the late '90s, Congress enacted, and Bill Clinton signed, a law that banned all video production. Under the law's sweeping language, however, the feds started to target other kinds of videos - which is how Robert Stevens got indicted in 2004. A self-described, Virginia-based dog trainer and documentarian who specializes in the pit bull breed, Stevens had produced some videos that showed a pit bull attacking a pig and some Japanese pit bulls attacking each other. And since the '99 federal law broadly bans "depictions of animal cruelty," Stevens wound up in the slammer for 37 months.
Your gut may be telling you that this guy deserved to be locked up, if only to applaud the intent of the '99 law and send a message to those who get off on seeing animals in peril. But Roberts and his bipartisan majority rightly used their heads, and ruled that Stevens was unjustly jailed; that, in fact, he had been ensnared by a law that gave the government way too much latitude to prosecute what should be considered legitimate forms of free speech - or, at the very least, noxious forms of speech that might be of legitimate interest to scholars and historians. (I'm sure, to many of us laymen, this sounds like we're splitting hairs: Acts of animal cruelty are already prohibited by all 50 states; the court yesterday was ruling on a law that barred video depictions.)
Naturally, not all forms of speech are deemed legally legit - for instance, libel and incitement to riot are out of bounds, and the high court ruled in '82 that child porno is verboten - but by tradition and principle America generally permits most everything else. This tends to amaze a lot of foreigners (yesterday, an aspiring law student from Singapore told me how the government back home routinely censors news stories about the regime's corruption), but Roberts merely sustained that tradition in his 8-1 majority opinion, with only Sam Alito dissenting.
Roberts pinpointed the overall problem of allowing the government to police speech; sometimes, it's akin to a slippery slope. Under the terms of that '99 law, no video depictions of animal violence could be circulated in places that specifically ban the violence being depicted....which meant that anyone in Washington, D.C. who circulated hunting magazines or hunting instructional videos was actually committing a crime, because hunting as a practice is illegal in Washington, D.C.
The Obama administration, which had to defend the '99 law, argued in court that the judges needed to weigh the law's benefits (curbing animal violence videos would help curb animal violence) against its costs (carving out a new prohibition on free speech). But Roberts wrote that this kind of speech balancing test was "startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits....The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."
This is the civil libertarian tradition that often unites the right and left. It's nice to see that unity every once in awhile - even if it means defending distasteful forms of expression, and sticking up for the kinds of people you wouldn't dream of inviting to dinner.
-------
By the way, U.S. Solicitor General Elena Kagan was the government official who suggested that the high court uphold the '99 law by employing the aforementioned speech balancing test. This is the same test that Roberts dismissed yesterday as "startling and dangerous." This is also the same Elena Kagan who's seen as a top prospect to fill the impending high court vacancy. If President Obama does choose her, it will be interesting to see whether the Republicans add "startling and dangerous" to their expected weaponry.
Indeed, the Democrats reportedly expect the GOP and its ideological allies to strongly assail the eventual nominee, regardless of who it is. That may well be true. But, if we are to be faithful to the historical record, let it be noted here that the Democrats started the partisan mudbath tradition back in 1987.
Less than an hour after President Reagan tapped Robert Bork for the high court, Senator Edward Kennedy ushered in a new era of unfair hyperbole: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police would break down citizens' doors in midnight raids..."
Even Joe Biden told a reporter, several years later, that Kennedy's assault "drew lines in ways that were starker than reality." Which was Biden's way of saying that his good buddy had woefully crossed the line. In the weeks ahead, if any Senate Republican slimes Obama's nominee in that fashion (which I doubt will happen), Democrats would be rightly outraged. But they might want to remember how it all began, in those distant days before Kennedy ascended to sainthood.
With each passing day, it becomes quite clear that Obama, Clinton and the democrats will do anything, including committing totalitarian tactics, to quelch any dissent of King Obama's and his regime's agenda.— CD75- Don't ever trust a word Dick Polman says. See the Politico article today that notes that the Democrats receive more money from Wall Street. Also see the AP article that people like Dick Gephart and Tom Daschele work as lobbyists for Wall Street Banks.— CD75
- Uh, CD75, the administration has no choice but to defend federal laws that have been enacted whether they agree with them or not. That's how our legal system works.— anonymous
- CD, the last several days here have been loaded with "the Politico article today" It pretty well settled by now. The Dems got more money.— JimR
- Hey anonymous. PLEASE don't wake cd75 up from his paranoid and delusional fantasies. He likes it there.
- CD75 : you do realize that the "totalitarian tactics" - i.e. locking the guy up - that you accuse the Obama administration of took place in 2004/2005, right?— still_independent
Step on a hamster, it's free speech. If a corporation contributes to a political candidate, it's the end of democracy. Go figure.— jmc- It's rare to get an 8 - 1 vote on this or any other S.Ct. so this law must've been way over the line.— pj katauskas
- jmc : i'll put it the opposite way. Corporations have a right to free speech but not people?— still_independent
Comment removed.- Here is the whole Kennedy quote (talk about being bork-ed:) "Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens of whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy." -Edward Kennedy Source:http://washingtontimes.com/books/20041009-103404-2341r.htm— NEPhilly
- I am wondering who wrote this post, in which the Supreme Court is lauded and Ted Kennedy is criticized for starting the Supreme Court nominee "mudbath" with the way he depicted Robert Bork. I believe this is the first time Polman ever labeled what Kennedy did as "unfair", which makes me wonder who wrote that part of the post. BTW, this Supreme Court decision on the same day the press was ushered from in front of the White House so they could not cover a "don't ask, don't tell" protest by 6 people in full military dress. It was reported that this was the first time the press was ever kept from covering a protest in front of the White House. Dare not cover anything that puts the regime in a bad light.— tom - wilmington, de
- tom, my suspicion is every once in a while Mr. Polman lets his conservative grad student write his blog, but not often enough for my liking:)— NEPhilly
- tom: the protestors were on the liberal side of the argument - they were gay/lesbians protesting to end "Don't Ask Don't Tell". In any case, according to Fox, you conveniently left this part out ... "Fox News Radio was on the scene and reported that the "closure" lasted about 15-20 minutes before police changed their minds and allowed the media to return just before they began arresting the demonstrators." ... http://www.foxnews.com/politics/2010/04/21/police-block-reporters-gay-rights-protest-outside-white-house/— still_independent
- I wonder they those on the left aren't so technical and specific in their analysis of Congress and the White House when Democrats are in charge? Notice how there's no negative comments from them at those times. Hmmmm. If you ask me, liberals are megalomaniacs.— A Friend
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
ARCHIVES
All commentaries posted before April 18, 2008, can be accessed at www.dickpolman.blogspot.com.
- American Spectator
- David Limbaugh
- Free Republic
- Glenn Reynolds
- Hugh Hewitt
- Human Events
- John Hawkins
- Matt Lewis
- Michelle Malkin
- National Review
- Opinion Journal
- Power Line
- Red State
- The Brody File
- The Daily Caller
- Town Hall
- Weekly Standard
- Center for American Progress
- Crooks and Liars
- Daily Kos
- David Corn
- Huffington Post
- Media Matters
- Mojoblog (Mother Jones)
- Open Left
- Political Animal
- Salon's War Room
- Talking Points Memo
- Tapped
- The Democratic Strategist
- The Grey Matter
- Unclaimed Territory
- Andrew Sullivan
- Attytood
- Chi Tribune's The Swamp
- CJR's Campaign Desk
- CNN's Political Ticker
- CQ Politics
- FactCheck.org
- Gail Collins
- Howard Kurtz
- Mickey Kaus
- NBC's First Read
- Obit
- Political Wire
- Politico
- Politics Daily
- Pollster.com
- Real Clear Politics
- The Atlantic Wire
- The Fix
- The Moderate Voice
- The Plank
- USA Today On Politics
- Wonkette
