Issue 112, Summer 2010

What a year, and it’s not over yet. Whether by happenstance or design, the Supreme Court is knee-deep in free speech cases. It’s too early to say where we’ll be when the dust settles.    

We’ve already written on the two decided cases, Citizens United v. FEC and US v. Stevens (CN 111). To recap, in Citizens United the Court was asked to decide if the ban on electioneering communications before an election applied to a derogatory video about Hillary Clinton to be aired on pay-per-view cable. Instead of addressing that narrow question, the Court held that corporations are entitled to the same level of protection for political speech as natural persons and, overturning decades of precedent, struck down campaign-finance law restrictions on corporate spending on elections. 

In Stevens, the Court took a different tack. In ruling on a federal law that made it a crime to create, possess or sell any “depiction of animal cruelty,” the Court declined to address the broader question whether expression depicting or describing violence is fully protected under the First Amendment, which has been the law since 1948. Instead, the opinion was narrowly drawn, holding only that the statute’s ban on “depictions of animal cruelty” is unconstitutionally overbroad.   

Less than a week later, the Court granted review in Schwarzenegger v. Entertainment Merchants Association, involving a California law restricting the sale of violent video games to minors. The Ninth Circuit struck down the law, relying on the long line of cases protecting violent expression, and on the fact that there is no evidence that violence in video games actually harms minors.  The Court’s decision in Stevens could well have  disposed of this case. The fact that it didn’t raises troubling questions about where the Court is headed in its approach to violent content.

It’s also curious that the Court even agreed to hear the video game case. It is rare for the High Court to review a case unless there is a “split in the circuits” – meaning disagreement about the law in the lower courts resulting in inconsistent decisions around the country. There was no such split among the many courts that have rejected state legislative efforts to regulate violent video games.
The same question arises in the Court’s decision to hear another highly charged, but unique, case involving the Rev. Fred Phelps, whose anti-gay demonstrations at military funerals have drawn public opposition. The parents of a deceased soldier sued Rev. Phelps for damages for “intentional infliction of emotional harm.” The Fourth Circuit Court of Appeals held that the speech, although “distasteful and repugnant,” consisted of “rhetorical statements employing ‘loose, figurative or hyperbolic language’” and could not be mistaken as “asserting actual facts.” As such, the circuit court found that the speech was protected by the First Amendment.  

The casual observer can be forgiven for thinking that the First Amendment isn’t such a good idea if it protects the rights of corporations to influence elections and the freedom to sell dog-fighting videos, with the promise that in the near future it will include protection for violent video games and the right to picket funerals. While in each of these cases the First Amendment principle at stake is substantial, the concentration of cases that test public understanding and resolve is unfortunate. Which makes it all the more important to remember Justice Kennedy’s observation that “the history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.”