Digital Media and Data Privacy Law Blog

The United States Supreme Court's recent decision  in U.S. v. Stevens, which invalidated on First Amendment grounds a federal statute criminalizing the commercial creation, sale, or possession of a "depiction of animal cruelty," has been widely discussed in the media and blogosphere.  In Stevens, the Court held 8-1 that the so-called "dog-fighting" statute was, on its face, unconstitutionally overbroad.  In so holding, the Court declined the government's invitation to create a new category of speech that did not enjoy First Amendment protection.

Our purpose here, however, is not to rehash the details of that case (for a terrific rundown of the facts and holding, read this post from Lyle Denniston at Scotusblog).  Rather, our interest is in explaining why members of the media should care about a dog-fighting decision.

Stevens matters -- or should matter -- to journalists for two reasons.

First, it invalidated a law that, read broadly, could have created criminal liability for a television news show discussing dog fighting that included footage of an actual dog fight.  While the statute had a savings clause that exempted "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value," the Court held that the First Amendment does not countenance government prosecutors passing judgment on what has "serious journalistic value."

Chief Justice Roberts, writing for the Court, did not buy assurances from the government that the statute would be interpreted narrowly.  He wrote that the government "offer[ed] no principled explanation why" certain depictions of Spanish bullfighting would be "inherently valuable" while certain depictions of dog fighting would not.

More broadly, Stevens matters to journalists because the Court -- almost unanimously -- denied in extremely strong language the government's attempt to create a whole new category of speech (depictions of animal cruelty) that could be criminalized based on a "balancing of the value of the speech against its societal costs."

The Court held:

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).

To understand the importance of that holding, imagine a scenario where every category of speech could be proscribed if the government or a court did not think its value outweighed its potential harm.  Would broadcasters be forced to defend the societal value of their latest "reality TV" offering?  Could newspapers be barred by law from publishing any article whose societal value was not deemed sufficient?  The reach of such an outcome would have been breath-taking.

As the Court pointed out -- and as journalists are all too aware -- much (if not most) speech has little or no true "societal value."  Nonetheless, such speech has always enjoyed First Amendment protection unless it fell into one of a very small number of historically recognized exceptions (obscenity, defamation, fraud, incitement, or speech integral to criminal conduct).

By drawing a firm line in the sand, the Court affirmed that journalists will continue to retain broad discretion under the First Amendment to publish what they think has value -- whether or not the government or a court might disagree.