In a much anticipated decision, the Supreme Court yesterday struck down a federal statute making it a crime to create, sell or possess “a depiction of animal cruelty.” In the 8 – 1 opinion, the Court characterized the law as “a criminal prohibition of alarming breadth,” because of its potential to criminalize a vast array of legally protected expression, including hunting videos and pictures of animals being slaughtered. Justice Alito dissented.
The majority rejected the Government’s argument that free speech rights should be judged by a “balancing of the value of the speech against its societal costs,” calling the proposition “startling and dangerous.” Chief Justice Roberts, writing for the Court, held that “the First Amendment itself reflects a judgment … that the benefits of its restrictions on the Government outweigh the costs.”
The Government “has no power to restrict expression because of its message, its ideas, its subject matter or its content.” The Court sharply rebuffed the government’s suggestion that “prosecutorial discretion” would save hunters, photographers, magazine publishers and others from prison, saying, “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.”
Although adopted with good intentions, the law ignored long-standing First Amendment principles. As we’ve said before, in this country we punish conduct, not expression. Animal cruelty is already a crime in all 50 states, and nothing in this opinion will help the Michael Vicks of the world.