Most of the reaction to the Supreme Court's decision to throw out a federal law banning videos of dogfights and other acts of animal cruelty has been over the lopsided 8-1 ruling. The lone dissenter, Justice Samuel Alito, an otherwise fierce conservative ideologue, stood up for animals, as few arch conservatives are prone to do.According to the common wisdom, Justice Alito did so because he owns a dog.
I'm not sure of Justice Alito's motivation. Nonetheless, he took a bold stand against the so-called "crush" videos while brandishing his conservative colors by claiming the ban would not interfere with the right to make hunting videos, as some in the majority feared. In his dissent, he said, ". . . the predominant view in this country has long been that hunting serves many important values and it is clear that Congress shares that view."
But as a long-time Court-watcher, I am more fascinated by the Court's amazing power grab on the issue of free speech, not only in this week's United States v. Stevens ruling, but also in a March ruling when the justices granted corporations free speech rights tantamount to those enjoyed by individual citizens. That ruling lifted limits on corporations' right to spend on political campaigns.
The "crush" video ruling is ridiculous on its face. Would any right-thinking American believe that he or she has a "constitutional right" to make and sell a video of a high-heeled woman crushing a mouse to death with her stiletto, or of dogs fighting to the death? No, only a sadistic, mentally ill, sex fetishist would make that claim. And yet, eight Supreme Court justices ruled exactly that.
They did so not because they are eight sadistic, mentally-ill, sex fetishists, but because they truly believed that Congress had passed a law that was "over broad." They feared that Congress, when it passed 18 U.S.C. §48 to "criminalize the commercial creation, sale or possession of certain depictions of animal cruelty" might also have given prosecutors a green light to go after producers of educational slaughter videos, hunting videos and so on.
A reading of the law seems to exempt those legal animal slaughter activities (much as I personally would like to see them banned as well.) It specifically exempts any behavior legal under state law, and hunting is legal under all state laws except the District of Columbia (because there's no open space here on which to hunt). It exempts other sorts of animal slaughter activities, too, if done for educational or religious purposes.
There is no doubt Congress will pass a new, more narrowly tailored version of the crush law that the Supreme Court threw out. The day after the ruling, Rep. Elton Gallegly, (R-Calif.) and Rep. James P. Moran (D-Va.), co-chairmen of the Animal Protection Caucus, had written the new law and, within a couple of hours, lined up 55 of their colleagues, from both parties, as co-sponsors. The new, three-page bill would prohibit the interstate sale of images of animals being "intentionally crushed, burned, drowned or impaled" unless they have "religious, political, scientific, educational, journalistic, historic or artistic value." Violations would be punishable by up to five years in prison, a fine of up to $10,000 or both. The bill says the prohibition would not apply to hunting videos.
But the fact that this Court would rush in to protect what many would view as fringe free-speech rights is a curious historical development indeed. I was not surprised when, in 1989, the justices, by a 5-4 vote, protected flag-burning as free speech.
Conservative Justice Antonin Scalia provided the crucial fifth vote, but he later added that, "he doesn't carry any deep affection for bearded, sandal-wearing weirdos who choose to express their First Amendment rights by burning the American flag."
As repugnant is flag-burning is to every patriotic American, it is still a very pure, non-commercial form of free speech which should be protected. Corporations, suffused with money, can buy unlimited amounts of media ads promoting their commercially driven causes. But one lone, poor, disaffected American has few avenues to get widespread media attention for his or her beef with government.
It is beyond my ken why the justices would feel compelled to protect corporations from limits on their free speech rights.
Corporations are big boys and girls who can easily protect themselves. Similarly, why the rush to protect the commercial
rights of rights animal abusers? Neither decision makes much sense.
One legal scholar explained what I see as free speech power grabs by the Supreme Court to USA Today's Supreme Court reporter, Joan Biskupik, thusly:
"Throughout history, the speakers who have sought refuge in the First Amendment have often been those opposed to the prevailing winds," (Washington and LeeUniversity Law School Dean Rodne) Smolla says. "We happen to be at a juncture in history in which some conservative voices are especially ardent, and it makes some sense that cases testing the rights of those voices would rise to the fore."
I'm not sure I completely agree with Dean Smolla, as even the entire liberal wing of the court agreed with the conservatives in the Stevens animal cruelty video case. Nonetheless, it's as good an explanation of otherwise odd behavior as I could muster.
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