I never thought I’d write these words, but Justice Alito and I have found some common ground. His lone dissent in United States v. Stevens highlights, probably inadvertently, the problem with much of the constitutional analysis coming from The Roberts Court. Makes you wonder where he was during the Citizens United decision and how he can possibly reconcile these two decisions.
The Court’s 8-1 ruling holds that the government lacks the power to outlaw expressions of animal cruelty when those expressions appear in videotape and other commercial media. Like all First Amendment jurisprudence, the constitutionality of a particular form of speech is determined by the scope of the inquiry. And it is in the scope of the inquiry where the Chief Justice and his usual stalwart Justice Alito part ways.
Writing for the majority, Chief Justice Roberts argues that the Court was in no way limiting the ability of the government to outlaw acts of animal cruelty. Rather, it was concerned with the possibility of the government seeking to carve out broad categories of speech with no compelling evidence that the speech was dangerous or criminal.
The law at issue makes it a crime, punishable with up to five years in prison, to make, sell, or possess a “depiction of animal cruelty” if any of those acts is done so for commercial gain. It defines “animal cruelty” as a depiction where a living animal is intentionally “maimed, mutilated, tortured, wounded or killed” provided that action violates a state or federal law. The law also contains an explicit restriction for any depictions containing “serious religious, political, scientific, educational, journalistic, historic, or artistic value.” Unlike child pornography, one category of speech that receives no constitutional protection, the Chief Justice and the majority argues that there simply is not the same compelling link between depictions of animal cruelty and the perpetuation of the “crush videos” outlawed by the government.
If you are scratching your head at this point in the constitutional analysis, you are not alone. The law the decision struck down was written specifically in response to widespread trafficking in crush videos and the language alone is clearly modeled on the constitutional carve-out provided for speech like child-pornography.
And much like the analysis in Citizens United, it is easy to get caught up in the intellectual free-speech ether that the Chief Justice proposes. Of course we want broad protections for speech. And certainly there are some kinds of videos, like the undercover reporting highlighting the grotesque nature of factory farming for example that may also be banned under this analysis. And like we heard with the ruling in Citizens United, without the ability to freely express and exercise our First Amendment rights, the rest of our constitutional protections become meaningless. Taken outside the realm of consequence, these arguments certainly have some appeal.
But the danger in succumbing to that appeal, as was pointed out in the Citizens United dissent, is that our law becomes divorced from practical reality, rendering meaningless any true constitutional distinctions. Justice Alito’s dissent blasts the majority for taking an unnecessarily broad review of a statute for the sake of having some constitutional fun. Since animal cruelty is already a crime, the proper analysis according to Justice Alito should have been for the Court to send the case back down to the Third Circuit to decide whether or not the tape in question depicted illegal acts. If it did the free speech questions would be irrelevant since possessing tapes depicting a crime is illegal. The majority, Justice Alito argued, was making an absurd distinction between outlawing acts of animal cruelty (which are already on the books) and possessing evidence of those acts all in the name of free expression.
But Justice Alito took it a step further by attacking the majority’s First Amendment analysis head-on. According to Justice Alito crush videos are analogous to child pornography and therefore deserve no constitutional protection. “The videos record the commissions of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos.” The majority, Justice Alito argues, just revived an industry that had all but been extinguished as a result of this 1999 law. And as animal rights blogger Alicia Graef notes, the majority’s conclusion speaks more to its own values than the Constitution’s when she says “[i]n pioneering the need for free speech, it was understood that at the heart of democracy is the right for justice and human decency.”
Perhaps what the Stevens decision will come to represent is the culmination of a view of commerce above decency that can perfectly describe the Chief Justice. His decisions make it more and more apparent that he believes principally in capitalism over democracy and views a “limited government” as one that provides for the greatest of commercial possibilities. Of course, the danger in such a view is that it removes the moral compass of democracy, the ideal that commerce cannot always trump decency in the name of protecting commerce.
More from Care2 on this Supreme Court decision:
photo courtesy of epicharmus via Flickr
Disclaimer: The views expressed above are solely those of the author and may
not reflect those of
Care2, Inc., its employees or advertisers.