NYR iOS app Android app More

First Amendment Under Siege

Supreme Court

The Huffington Post   First Posted: 03/18/10 06:12 AM ET Updated: 05/25/11 03:15 PM ET

I'm in hot water again at home. You try explaining to a family that loves all creatures great and small that you're defending the rights of a man sentenced to prison for creating and selling videos with footage of pit bulls tearing into one another. Why have publishers (and booksellers, librarians, and authors, for that matter) come to his defense? Why should the outcome of his case matter to publishers and readers?

It does matter. U.S. v. Stevens, which will be argued before the Supreme Court today, October 6, is the most important free speech case of the new century. Its outcome will influence the shape of First Amendment protection for a long time to come, because what the government wants to criminalize are not acts of animal cruelty, which are already illegal in all 50 states, but speech about those acts.

At issue is a federal statute that prohibits the creation, sale or possession of any depiction of animal cruelty if the act is illegal where the depiction has been created or sold. The Clinton-era law was aimed at so-called "crush videos," a particularly repellent sexual fetish involving the stomping of small animals.

If the law had been limited to "crush videos" we wouldn't have gotten involved. But Congress passed a much broader law, aimed at "regulating the treatment of animals." Although President Clinton promised enforcement would be limited to "wanton cruelty to animals designed to appeal to a prurient interest in sex," this has not been the case. Virginia resident Robert J. Stevens, a dog-trainer and pit bull aficionado, was indicted under the statute by a federal grand jury in Pennsylvania, convicted and sentenced to 37 months in prison for selling educational videos (available through mainstream sources including Amazon.com) containing footage of pit bulls fighting and attacking other animals. Stevens did not create the footage: some of it was 30-years old and other footage came from Japan, where dog fighting is legal. The conviction was overturned by the 3rd Circuit Court of Appeals in Philadelphia, which found the law to be an unconstitutional ban on protected speech (although it should be noted that nothing in the federal appeals court ruling would prevent law enforcement officials from using videos or other depictions of cruelty to go after and prosecute those engaged in illegal conduct).

Publishers, librarians, booksellers and authors, joined by independent film makers, documentary makers, and others, concerned about the danger to the First Amendment, have filed a brief with the Supreme Court pointing out that despite the Government's false assurance that the statute is limited to animal-fighting and "crush" videos, the law's stunning over-breadth would put at risk creators of illustrated books, films, or magazine articles graphically depicting things such as slaughterhouse practices, bullfighting, or poaching.

In defending a statute criminalizing the depiction of animal cruelty, the government is arguing that a whole category of speech can be denied First Amendment protection based on the radical proposition that the "value" of the speech should be weighed, on a case-by-case basis, against a compelling government interest to suppress that speech. With the exception of certain clearly defined categories such as true threats, incitement to imminent lawless action, and child pornography, speech, even reprehensible speech, is protected by the First Amendment. If the government succeeds in carving out a whole new category that is unprotected, it takes little imagination to see where the road might lead: carve-outs for hate speech? Blasphemy? Violence?

The fact that the law has an exception for material with "serious religious, political, scientific, journalistic, historical or artistic value," does not make it more palatable.

Do we really want politicians or judges and juries making subjective decisions about what speech has value? Before we cede such power we would do well to remember that not long ago a judge in New Jersey wanted deny author Tim O'Brien a journalist's right to maintain the confidentiality of his sources because, in the judge's opinion, O'Brien's book TrumpNation was "entertainment" and not "news." The fact that the ruling was subsequently overturned doesn't make it any less disturbing.

Our right to speak freely is unmatched anywhere in the world and that is worth fighting for--even if I have to carry the fight home with me to a family of animal lovers. Looks like I'll be in hot water for a while longer.

Judy Platt is Director, Freedom to Read & Communications/Public Affairs, Association of American Publishers

FOLLOW HUFFPOST BOOKS