It's the first Monday in October, so the U.S. Supreme Court is now in session.
I've already outlined the big cases this term (as I see them) here. This week on the docket, the Court will hear arguments for two First Amendment cases — one about speech; one about religion.
The speech one I find particularly interesting. The case is on United States v. Stevens (08-769), which deals with a federal law that criminalizes selling depictions of animal cruelty. The question is, quite simply, whether the law runs contrary to the First Amendment, i.e., are depictions of animal cruelty "free speech"? It will be argued on Tuesday.
The Solicitor General will defend the law as “designed to prevent people from profiting from the unlawful torture and killing of animals,” while opponents will frame the question as one of “whether the government can send an individual to jail for up to five years just for making films — films that are not obscene, pornographic, inflammatory, defamatory or even untruthful.”
At issue are so-called "crush videos" — videos on the Internet which involve women — usually in high heels — stepping on animals (small kittens, etc.) and killing them (yes, it is a sick world). They have been outlawed here in the United States, but now the constitutional question arises as to whether they can be constitutionally outlawed.
The First Amendment protects speech. Exceptions have been carved for (as the quote above suggests) speech that is obscene, pornographic, inflammatory, defamatory, or untruthful. The problem (arguably) with the law is that it is so broad that it could conceivably cover hunting videos and fishing videos. In fact, Stevens (the defendant in the case) was arrested for seilling dog-fighting videos which, while bad, aren't "obscene" to the level of women skull-crushing kittens.
These cases are tough, because one's inclination is to say "Well, if the speech harms society, it should be banned", but of course, how far down that slope is one prepared to go? And who gets to decide what kind of speech harms society? Banning child porn and kitten-skull-crushing videos is one thing, but hunting/fishing? Probably not. The thing is… where does the court draw the line? It gets tricky.
It is always hard to predict speech case outcomes. Scalia, for example, opposed the ban on flag-burning, noting that the First Amendment has to stand for allowing speech that offends some; otherwise it means nothing. In another free speech case, Justice Kennedy, who is more moderate, also opposed bans on flag-burning, but on the other hand, he supported the suspension of a student who displayed a banner saying "Bong Hits for Jesus".
So which way will this one come out? I'm leaning toward them overturning the law.