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.