The First Amendment says,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.Justice Black understood the free speech and press part of that literally. "No law," he famously and repeatedly said, "means no law."
But even he didn't really mean it, and nobody else much does, either. Justice Holmes' comment in Schenck v. United States gets at the heart of the problem.
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.Holmes didn't add intent into the formulation (i.e., "falsely shouting fire in a theater with the intention of causing a fire") which is a serious mistake, but he was getting, accurately, at something fundamental about how the First Amendment works. It extends just to the point where we get to nervous to extend it any further.
So in 1798, just seven years after the First Amendment was adopted, Congress enacted and President Adams both signed and used against members of Jefferson's party the Sedition Act criminalizing much criticism of the government. We think of that as a relic of the past, but it's not that long ago that the Supreme Court first decided, in New York Times v. Sullivan, that criticizing a government official does not, ordinarily, subject the critic to liability for defamation.
In fact, there are whole categories of speech that, according to the Supreme Court, have no protection under the First Amendment. As the Court explained in Chaplinsky v. New Hampshire,
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.The list of categories is subject to expansion. In 1982, the Court added child pornography in New York v. Ferber. And now, in United States v. Stevens to be argued on October 6, the Court will hear argument over another category. As Adam Liptak puts it in the Times, the question is
whether the court should for the first time in a generation designate a category of expression as so vile that it deserves no protection under the First Amendment.The category is depictions of violence against animals. Specifically, Stevens was charged with and convicted of three counts of violating a federal law criminalizing depictions of animal cruelty by selling videotapes containing footage of dog fighting. You know, what Michael Vick was convicted of actually participating in.
The law itself has a curious pedigree. It was originally intended to address what are known as "crush" videos, films designed to satisfy the sexual fetish of liking to see small animals crushed to death - particularly by women wearing stiletto heels. By the time congress got done tinkering with it, it was a lot bigger than that.
When Clinton signed it, he explained that it would only be enforced against crush videos. The problem with such Presidential assurances, of course, and even if they're honest assurances, is that Presidents come and go. And with the change in administration, there came the change in enforcement. Hence, the police to Mr. Stevens' door.
Now, dog fighting is illegal in all 50 states, but nobody's accused Stevens of engaging in or organizing any dog fights, just of selling videos - including some scenes shot in Japan where the, er, sport is legal. Still, and maybe this will seem relevant to you and maybe not, Vick got 23 months, Stevens was sentenced to serve 37.
In any event the Third Circuit threw out the law, and Stevens' conviction with it.
Regardless of how noble Congress's motives, the court said, it simply would not carve out from protected speech a new category for depictions of animal cruelty.
An Ohio judge once told me that the legislature (he was referring to the Ohio General Assembly, but could as easily have been speaking of Congress) should never get involved in criminal law. "They just fuck it up," he said.