As expected from the oral argument in U.S. v. Stevens last fall - when Justice Alito was alone in expressing some support for the government’s position - the Court on Tuesday upheld the First Amendment by declining to add a category of unprotected speech. This was not, after all, a case about the “human sacrifice channel” or Michael Vick’s greatest dog fights. Indeed, cruelty to animals should be and is punished everywhere in the country. Instead, at issue here was a broadly drawn “depiction of animal cruelty” statute that could have ensnared Spanish tourism brochures or hunting instructional videos. More fundamentally, the Court rightly rejected the government’s proposed weighing of the “value” of speech against its “social cost.” That’s simply not the way Americans view the First Amendment.
The case is also notable because a solid majority of the Court rejected the “speech balancing test” defended by Solicitor General Elena Kagan, often mentioned as being on the short list of candidates to succeed retiring Justice John Paul Stevens. Chief Justice Roberts’ opinion, joined by all of the panel’s liberal justices, went so far as to call that argument by Kagan “startling and dangerous.” That is the kind of legal reproach that tends to be revisited at confirmation hearings.