Supreme Court Upholds Free Speech Rights

In a significant First Amendment decision, on Tuesday, April 20, the U.S. Supreme Court, by a vote of 8-1, declared unconstitutional a law banning photos, film, and video depictions of animal cruelty and, in doing so, rejected the federal government's attempt to create a new exception to the First Amendment. Writing for the majority, Chief Justice John G. Roberts, Jr., noted that the law "created a criminal prohibition of alarming breadth," which could have made the sale of magazines or videos showing hunting a crime in Washington, D.C., where hunting is illegal.

The decision was hailed by Media Coalition, a trade association that defends the First Amendment rights of mainstream media. In July 2009, the American Booksellers Foundation for Free Expression (ABFFE) joined the Association of American Publishers, the Freedom to Read Foundation, and other members of Media Coalition in filing an amicus brief in the case, U.S. v. Stevens. Media Coalition had also played a key role in soliciting briefs from a diverse constituency, including journalists, pet owners, and hunting groups.

The government's interpretation of the law sought to give federal officials substantial power to decide whether certain words and images are worthy of First Amendment protection, using a "balancing test" that weighed the value of the speech against purported "societal costs." The court's decision soundly rejected that proposition, saying that "[a]s a free-floating test for First Amendment coverage, that idea is startling and dangerous."

"As the court today recognized, giving the government 'freewheeling authority' to judge the social worth of words and images is a dangerous proposition," said David Horowitz, executive director of Media Coalition. "This landmark ruling affirms that First Amendment protections are not subject to balancing tests or limited to speech with so-called serious value."

ABFFE President Chris Finan praised Media Coalition's role in the decision. "Media Coalition has represented booksellers in key legal cases for more than 30 years, and the Stevens case is one of the most important," he said, "Justice Roberts' opinion seems to lean heavily on the arguments in the Media Coalition brief, and David Horowitz did a terrific job in coordinating supporting briefs from other organizations."

In the majority decision, the justices declined to carve out a new exception to free expression rights by placing depictions of animal cruelty among the few, narrowly defined categories of unprotected speech. As Chief Justice Roberts put it: "Despite the government's assurance that it will apply [the law] to reach only 'extreme' cruelty, this court will not uphold an unconstitutional statute merely because the government promises to use it responsibly." Justice Samuel Anthony Alito, Jr., was the sole dissenter, writing in the opinion that the government could legitimately balance free speech against purported "societal costs."

At issue in U.S. v. Stevens was a 1999 federal law that made it a crime to create, sell, or possess videos and other depictions of cruelty to animals. Violators were subject to up to five years in prison for each count, as well as unspecified fines.

The case arose when Virginia resident and published author Robert J. Stevens was sentenced to 37 months in prison in 2004 by a federal court in Pennsylvania for selling videos that showed pit bulls fighting and training to hunt wild boar. As this week's decision noted, the issue was not about banning dog fighting but about banning depictions of any kind of cruelty to animals, including legal activities such as hunting. Much of the footage in Stevens' videos is more than 30 years old or comes from foreign sources where dogfighting is legal.

The Third Circuit Court of Appeals overturned Stevens' conviction in 2008, ruling that the law violated the First Amendment. The case was argued before the Supreme Court last October.

"It is clear from the opinion and the size of the majority that the court heard the many voices concerned about this law," said Horowitz. "The amicus briefs demonstrated that this law put at risk a broad range of newspaper articles, films, books, and images of hunting and wasn't limited to dogfighting videos."

The 15 groups that signed on to the Media Coalition brief are: the Association of American Publishers, Inc., ABFFE, the Association of American University Presses, the Comic Book Legal Defense Fund, the Entertainment Consumers Association, Entertainment Merchants Association, Film Independent, the Freedom to Read Foundation, Independent Book Publishers Association, Independent Film & Television Alliance, Independent Filmmaker Project, International Documentary Association, the National Association of Recording Merchandisers, the National Association of Theatre Owners, Inc., and PEN American Center.