Banning entire categories of speech

The U.S. Supreme Court in April 2010 ruled that legislation intended to curb the production and distribution of animal-cruelty fetish videos — but were instead used to prosecute those who sold and distributed videos that included animal fights — was so broadly written that it did not pass constitutional muster.

In an 8-1 decision, the court found that a federal statute that provided up to five years in prison for anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain” violated the First Amendment.

More important than the court’s conclusion that the legislation as written was overbroad, the justices rejected the government’s suggestion that Congress had merely exercised its “legislative judgment” to find a certain category of speech so devoid of societal value it was not protected by the First Amendment. The court called this proposition “startling and dangerous” and said that the Constitution protected more than just “categories of speech that survive and ad hoc balancing of relative social costs and benefits.”

“The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it,” the court said. It also pointed out that when it had previously identified categories of speech as unprotected by the First Amendment, it was not done “on the basis of a simple cost-benefit analysis.”

Although the legislation provided an exception from prosecution for depictions with a “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” this clause would have done little to protect journalists. There was no requirement in the legislation that the work at issue be considered as a whole; so “serious” journalism could very well be subject to an attack if one isolated scene was found offensive.

In its brief, the Reporters Committee explained “this allows a prosecutor to challenge a news media report not because the report as a whole lacks value, but because he or she objects to a particular image used in the report as sensationalistic or unnecessary to the report.”

The court’s unwillingness to create new categories of unprotected speech was an important point for all journalists. Congress will have a much more difficult time trying to carve out speech from First Amendment protection, and media exceptions that protect traditional media (usually not digital media) in limited circumstances will not be sufficient to allow the law to survive scrutiny.