Blog: Court refuses to create new free-speech exemption

Tuesday, April 20, 2010

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The U.S. Supreme Court’s decision today in U.S. v. Stevens striking down a federal law targeting depictions of animal cruelty represents first and foremost a vital victory for the First Amendment. Writing for the 8-1 majority, Chief Justice John Roberts closed the door on the government’s alarming argument that the Court should create another categorical exemption from free-speech protection.

The government had argued that if the value of speech is substantially outweighed by its negative social costs, then the Court should create another exception to free speech. Chiefly, the government argued that depictions of animal cruelty were akin to child pornography — a category the Court officially excluded in New York v. Ferber (1982).

Roberts acknowledged that there already exist certain categorical exemptions from First Amendment protection — obscenity, defamation, fraud, incitement and speech integral to criminal conduct. But Roberts cautioned against creating new unprotected categories under a “highly manipulable balancing test.” He called the use of such a test “startling” and “dangerous.”

Roberts wrote in language destined to become oft-cited in free-speech jurisprudence: “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

He explained that the decision to create another categorical exemption required much more than simple balancing. There must be an indication that there is a strong historical tradition against protecting such expression. “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,” Roberts wrote.

The chief justice’s reasoning ensures that not every censor can take his or her slice out of the First Amendment pie.

That alone is reason to celebrate the Court’s decision in U.S. v. Stevens.

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