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.
