From the sounds of the on-the-ground reports I am getting, it seems that United States v. Stevens is looking good for those of us on the side of Free Speech. Only Alito seems skeptical of the free speech arguments. Sotomayor seemed to strongly challenge the government’s position, and Scalia seemed to be reviving his prior free speech theories as articulated in R.A.V. v. City of St. Paul. A great play-by-play of the arguments is here.
The Court was hearing argument in United States v. Stevens, a challenge to the law brought by Robert Stevens, who was prosecuted for making dogfighting videos — even though he claimed they were documentaries that did not foster or endorse illegal dogfighting.
For Chief Justice John Roberts Jr., the problem with the law was that “you have to look at the content” to decide if it fits the exceptions, making it the kind of content-based restriction on speech that is usually found unconstitutional.
For Justice Stephen Breyer, the flaw appeared to be that the exceptions are too broadly worded to guide people who “have to know what to do to avoid the risk of being prosecuted.”
Justice Antonin Scalia seemed most upset by passage of the law in the first place. “It’s not up to the government to tell us what our worst instincts are … Once you allow this [law], what other base instincts do people have?”
For her part, Justice Sonia Sotomayor said she found it hard to distinguish between dogfight videos deemed illegal and an explicit David Roma documentary exposing dogfighting. “Doesn’t there have to be a judgment inherent in this statute?” she asked.
Justice Ruth Bader Ginsburg had a similar concern. Why, she asked, would videos of bullfighting or cockfighting be viewed differently under the law from dogfighting?
Justice Anthony Kennedy’s flashpoint came when Deputy Solicitor General Neal Katyal, who was defending the law, pointed out that in its 10-year history, the law had not been used against speech worthy of protection under the First Amendment. When, Kennedy asked sharply, had the Court ever upheld a law that was challenged as overbroad just because “prosecutors have been restrained?” Source.
The full oral argument transcript is available here.
For background on the United States v. Stevens case, read “Protecting animals is not a reason to amputate part of the First Amendment.”