Is it morally reprehensible to torture and kill animals and document it on video? Maybe so. But that wasn’t the issue the Supreme Court was considering in its latest ruling published this morning. In U.S. v. Stevens, a case that tested the constitutionality of a law banning animal-cruelty videos, justices classified it as a First Amendment question, and ruled with significant unity—8 to 1—to strike down the law, which has been on the books since 1999.
Animal cruelty in most forms is illegal—just look at Michael Vick and his wardrobe of orange jumpsuits. But some forms aren’t, like hunting or bullfighting, which creates a gray area in deciding just what crosses the line. The law's defenders argued that depictions of women in stiletto heels crushing hamsters was akin to child pornography. But it was a wobbly argument. One of the more concerning aspects of child molestation is often considered the long-term effect psychological effect on the child, long after scars heal. There’s also the potential for lifelong embarrassment for a child depicted in a lewd way. But government lawyers, in this case led by Solicitor General Elena Kagan (who’s currently on President Obama’s short list to fill a seat on the high court) had a hard time equating the two.
Child pornography is child pornography, said the court. And images of animal cruelty may be horrible but aren’t illegal. Chief Justice John Roberts, who wrote the majority opinion, pointed out that just because someone doesn’t like another person’s expression doesn’t mean Congress can legislate it gone. In fact, that’s the sole purpose of the First Amendment.
"The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits," Roberts wrote. "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”
Still, there’s a valid question of constitutional intent. The Founding Fathers who wrote the First Amendment clearly valued expression free from the forceful hands of government. But when that form of expression is already illegal, should it be included? Justice Samuel Alito, almost always a mainstay of the court’s conservative wing, didn’t think so. "The First Amendment protects freedom of speech,” he wrote as the court's sole dissenter. “But it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.”