Rejoice! U.S. v. Stevens Opinion Out! A Sunny Day for the First Amendment!!!

Free speech wins 8-1. The reasons for my joy are pretty clearly laid out here in a prior post on the case.

The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” Reply Brief 12, n. 8, and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “‘legislative judgment that . . . depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,’” Brief for United States 23 (quoting 533 F. 3d, at 243 (Cowen, J., dissenting)), and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an 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 Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803). (Op. at 6-7)

In rejecting the Government’s call to expand the logic in Ferber:

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them. (Op. at 9)

And, it appears that Alito has decided to become the modern-day Rehnquist as he issued a 19 page dissent in which he seems to demonstrate a complete lack of understanding or respect for what the First Amendment is supposed to protect. Essentially he feels that if the amount of free speech that might be burdened is small, then that is okay. He completely ignores the fact that the number of “crush videos” produced worldwide is so painfully small (I would venture to guess it is less than 10), that there would be more legal expressive conduct banned under his view than illegal conduct suppressed.

I will update this post with more analysis later today — but I wanted to get the opinion out there as quickly as possible. This is a bright day for the First Amendment.

9 Responses to Rejoice! U.S. v. Stevens Opinion Out! A Sunny Day for the First Amendment!!!

  1. […] — for “depictions of animal cruelty.” The Supremes granted cert, and as Marc Randazza (who only approves of depictions of cruelty against defamation plaintiffs and Floridia… SCOTUS got it right, upholding the Third Circuit decision […]

  2. Ken says:

    Fantastic. A ringing rejection of the government’s loosey-goosey approach to creating new categorical exceptions whenever the mob demands it.

    But WTF, Alito?

  3. Alito seems to have decided that he will be the new Rehnquist – who at least gave us Hustler v. Falwell.

    I would hope that the utterly horrifying arguments that the government put forward will show people what a horrible Supreme Court justice Kagan would make.

    • Christopher Harbin says:

      Agree as to both Alito and Kagan. From transcripts Kagan has appeared uncomfortable and not really an impressive advocate.

      Alito’s willingness to abandon overbreadth doctrine and simply balance in favor the very few occurrences of “crush porn” to the exclusion of legitimate hunting videos is shocking. Basically his argument is “oh well, that’s the price we pay.”

      This Court has not been a First Amendment champion, (although I think that Citizens United & this case signal a pretty solid shift) and a case that gets Roberts, Scalia, and Thomas to sign along with the questionable libs (e.g. Stevens dissent in Texas v. Johnson) really shows how radical Alito’s views really are. Scary.

  4. Sean F. says:

    I’ll drink to that.

  5. […] is an important victory for free speech.  The Legal Satyricon also has posts worth checking out here and here. […]

  6. blueollie says:

    Interesting: someone called this SCOTUS ruling a “power grab”?

    I always thought a “power grab” would mean the “suppression of speech”?

  7. […] [Sirkin] was then able to get access to the Internet in the courtroom and obtain a summary of [United States v. Stevens] which he read to the court, and he told the judge that though he could not print it out, the court […]

  8. […] Supreme Court recently considered a similar issue in US v. Stevens, affirming the Third Circuit and ultimately striking down a 18 U.S.C. § 48 due to constitutional […]

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