One Right - One Wrong

SCOTUS taketh away and it giveth.

I talked about the taketh away part earlier today, a couple of hours before they killed Darryl Durr. The Supremes denied three petitions for writ of certiorari and three motions for stay. I won't go there again - at least not today.

But this morning at 10, just as Ohio started to murder my client - having been given permission by the Supremes (OK, I won't go there much more today), the Supremes issued their long-awaited opinion in United States v. Stevens, the case that's been decisional before them longest, having been argued back on October 6.

Here's what I said about the case back in September.

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.

Oral argument was fractious with discussion of such things as an execution channel on television.

Now we have the decision. By a vote of 8 to Alito, the Court did the right thing. It refused to carve out a new exception to the First Amendment. And it refused to trust the government. Wisely, of course. As I noted back in September,

When Clinton signed [the law], 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.

Roberts wrote the opinion. Here's the money quote:

Not to worry, the Government says: The ExecutiveBranch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).

It's that line about noblesse oblige that should be put on placards.