The First Amendment case that’s getting most of the attention this year involves Citizens United and political speech by corporations, in large part because most court watchers believe that the Court’s conservative majority is going to overturn almost a century’s worth of precedent when it returns its decision.
But there’s another case before the Court right now that could make the most ardent First Amendment advocate a little queasy defending it. That’s because the case involves dogfighting.
But this isn’t a case of a Michael Vick kind of involvement in dogfighting. Robert J. Stevens, the man who was convicted and whose appeal is being argued before the Supreme Court, never took part in a dogfight. He compiled and sold videotapes showing dogfights, and for that earned a 14-month sentence in federal prison which is, as the article notes, more time than Michael Vick got for actually running a dogfighting ring.
There’s no doubt in my mind that the videos described in this article are filled with images I would find incredibly repugnant. Dogfighting is a barbaric act and I’m glad it’s illegal in all 50 states. But I worry about the potential reach of a decision upholding Stevens’s sentence. Notice the way Adam Liptak phrases what’s at stake here: “The central issue 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 last time the court designated a category of expression as so vile it deserved no First Amendment protection involved child pornography, which would seem to be a pretty non-controversial stance. The problem is that the definition of child pornography crept a bit, and now includes drawings and email fantasies.
So my question about the Stevens case becomes “where might this creep?” Liptak’s article notes that this is already an example of an expanded reading of a law–Stevens was convicted under a law signed by President Bill Clinton meant to make “wanton cruelty to animals designed to appeal to a prurient interest in sex” illegal. That’s pretty standard practice for prosecutors–the PATRIOT Act, for example, has been used more often against organized crime than against potential terrorists–so it’s not like the prosecutor in this case did anything out of the ordinary in going after Stevens.
But it still worries me, because when we have laws that outlaw specific forms of expression, it’s easy to criminalize anything that disturbs us, and prosecutors (especially those who have to stand for election) tend toward the easily queasy. Ideally, defenders of the freedom of expression should celebrate those expressions that make us a little nauseous, but too often they take the other extreme, seeking to ban or hide anything which makes middle America nervous. As evidence of this, I present the latest chapter in Nipplegate, the Janet Jackson story. Yeah, that’s still going on.
I’ve come to grips with the notion that our politicians will start looking like NASCAR drivers soon, with corporate logos plastered on the sides of their campaign buses and patches on the backs and sleeves of their suits, so maybe that’s why I’m more interested in the outcome of this case than in Citizens United. Or maybe it’s because I’m a part of The Rumpus and I can easily see some of the stuff we write about here being caught up in the maw of an overzealous prosecutor looking to “clean up our society. I suspect it’s the latter. No, I know it is.