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Other First Amendment Issues

In a rather unusual case, the Court struck down a federal law that made it a crime to create or sell videos of dogfights or other depictions of animal cruelty. (There was an exemption for videos regarding hunting.)The case came on the appeal of Robert Stevens, who did not himself participate in dogfights, but who compiled and sold videotapes of the events.  He received a 37-month sentence under a 1999 law that banned trafficking in "depictions of animal cruelty." Dog fighting and other forms of animal cruelty have long been illegal in all fifty states, and the federal statute did not address animal cruelty itself but rather the sale of video recordings of "conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed." It did not matter whether the conduct was legal where it took place, but where the videos were sold.  Some of the tapes were of dogfights in Japan, where such events are legal.

The government argued that depictions of harm and cruelty to animals were of so little social value that they should receive no First Amendment protection.  But Chief Justice Roberts, speaking for an 8-1 majority in United States v. Stevens, responded that "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content." He acknowledged that some kinds of speech, including obscenity, defamation, fraud, incitement, and speech related to criminal conduct, have traditionally been excluded from constitutional protection.  The Supreme Court, however, has no "free-wheeling authority to declare new categories of speech outside the scope of the First Amendment."

The lone dissent came from Justice Samuel Alito, who charged that the majority opinion rested on "fanciful hypotheticals" that would protect a "depraved entertainment." He compared the law to that banning child pornography, which the Court had upheld because, as Roberts explained, that was a special case in which the market for it is "intrinsically related to the underlying abuse." Here, too, Alito argued, the videos of the crimes are closely related to the crimes themselves.

In Doe v. Reed, the Court heard a First Amendment challenge to Washington State's Public Records Act.  The case grew out of a 2009 referendum to repeal a law that expanded the rights of registered domestic partners.  Referendum 71 resulted from a petition drive by Project Marriage Washington and other groups opposed to the law, but it was unsuccessful. After the petitions had been submitted to the state for verification, several supporters of the law tried to get the names and addresses of the signers, and one organization promised to post those names on the internet. The organizations that had gathered the signatures moved to bar release of the names, which were available under the Public Records Act. A district court issued an injunction, the Court of Appeals for the Ninth Circuit reversed, and in the fall the Supreme Court blocked the release of the names until it had decided the case.

James Bopp represented Project Marriage Washington, and told the Court that signing a referendum petition was a political statement, and releasing the names would subject the signers to political harassment. "No person should suffer harassment from participating in our political process." The justices immediately pounced on this assertion and it became clear that Bopp would have trouble getting five votes to support the claim that there is a First Amendment right of privacy for persons signing petitions to put issues on the ballot. Justice Scalia was clearly skeptical, telling Bopp "In the first century of our existence, voting was public. The fact is running a democracy takes a certain amount of civic courage." The First Amendment "does not protect people from civic discourse or from nasty phone calls" when they participate. Other justices also peppered Bopp with hypotheticals to see how far his argument would go.

Chief Justice Roberts wrote for an 8-1 majority holding that public disclosure of the names and addresses of people who sign referendum petitions does not violate the First Amendment. In general, he explained, public disclosure is "substantially related to the important interest of preserving the integrity of the electoral process." Although rejecting a broad First Amendment challenge, Roberts said that groups seeking anonymity in this particular case might press a narrower challenge.  They could try to show that the state law is unconstitutional as applied to their particular situation in which disclosure could subject them to harassment. This, however, elicited concurrences from Alito and Sotomayor, the latter joined by Stevens and Ginsburg, who wrote that such challenges would bear a heavy burden and that lower courts should be rightly skeptical of such claims.

The only dissent came from Justice Clarence Thomas who adopted at least some of Bopp's First Amendment argument. "Compelled disclosure of signed referendum and initiative petitions," he wrote, "severely burdens those rights and chills citizen participation in the referendum process." He would have held the Washington law unconstitutional, because there were less restrictive means by which the state could have guarded the integrity of the electoral process. The Court also turned back a First Amendment challenge to a federal law that made it a crime to provide "material support" for designated terrorist groups, although at oral argument several of the justices seemed receptive to the argument that the law was both overly broad and too vague.  The case, Holder v. Humanitarian Law Project, had been brought by Georgetown University law professor David Cole, who argued on behalf of people who wanted to teach international law and nonviolence to designated groups, but feared prosecution. The justices seemed hostile to Solicitor General Elena Kagen's argument that the law did not bar the exchange of ideas, but did prohibit services, such as writing an amicus brief for a terrorist group.

Nonetheless, a 6-3 majority upheld the law. The Chief Justice wrote for the majority that the law was not unconstitutionally vague, and the Court deferred to congressional judgment in the matter, but he criticized the government's position for claiming that only conduct and not speech was involved in the litigation. The three dissenters, Breyer, Ginsburg, and Sotomayor, believed that speech was compromised, and deprived the litigants of their First Amendment rights.

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