In an 8-1 decision, the Supreme Court today decided that a federal law against so-called “crush videos” – whose depravity will go unilluminated here – were too broadly written to survive constitutional scrutiny under the First Amendment guarantees. Writing an opinion in favor of the law was the heavily favored SCOTUS prospective Elena Kagan, late of Harvard, enemy to military recruitment.
Her contribution was contrary to her interests:
The court’s decision not only stuck down a law enacted by Congress, but it also delivered a rather pointed rebuke to two individuals. First, Solicitor General Elena Kagan, a top contender for the U.S. Supreme Court, whose brief on behalf of the Obama administration was thoroughly repudiated in the strongest terms.
Gene Schaerr, who filed a brief on the other side for the libertarian Cato Institute, said if Kagan supervised the writing of the brief she signed, “I would agree that it does seem to raise questions about her judgment.”
Ah, well. It’s all about timing, isn’t it?
A good soldier does what s/he is told. But a really good soldier does it well.
“Chief Justice John Roberts first tackled the government’s assertion that a law can ban any category of speech if Congress deems that category not “worthy” of protection under the First Amendment guarantee of free expression. The government’s assertion, said the chief justice, is “startling and dangerous.” – this is from the possible SCOTUS nominee??
While I follow Supreme Court Chief Justice William Howard Taft’s beliefs as to the 1rst Amendment, in that “we must afford the most protection to the speech we find the most offensive, for if that is banned, where will it end?”, I do find that there is a point where you go beyond the protections, and those videos clearly do go beyond.
For which my personal solution is to shun… like I do when my kids watch Zombieland.
If the government wants to argue that those videos should be banned as having no redeeming social or artistic value, have at it.
But for the government to argue that Congress is the final arbiter of what has or has not redeeming social or artistic value is troubling.
I’m not at all troubled that Kagan would argue to support the law banning the videos. That’s the SG’s job. But to choose that line of reasoning is frankly quite baffling. And I’d be somewhat shocked if she were to maintain that staunch support for Congress to be the arbiter, should she find herself a Justice. Methinks she might then decide it a decision best left to the courts.
If I happen to see two dogs who are unknown to me having a spontaneous fight, and I happen to have a videocam handy, and film it, and later sell the right to look at that film, I don’t think I should be legally liable. That’s the point of the decision, that that law criminalized the publication of something which might not have been instigated by the vidiographer.
True, JTG, and I recall seeing a posit that the law as written would make videos of bullfights illegal.
I might add that I had never heard of “crush” videos until I read this post, and my first reaction is to apply the same level of “entertainment” to the camera operators as to the victims. I might even be open to the application of axe handles to sensitive parts of the human anatomy.
And to think that I once believed home videos of roasting kittens over a barbecue were the depths of animal cruelty…
Anyone care to wager on whether or not BHO can find someone to nominate to the supreme court who can make it through the process?
Do they have to pay their taxes?
Wouldn’t that be a first?
I’ve never seen a crush video, and am unlikely to ever do so. Life is short, I’ve better things to do.
That said, here in the Midwest we have a thing known as a “rat stomp.” Rats tunnel under buildings, eat through wooden bins, undermine concrete foundations, and in general make a real pest of themselves. So the solution was to store grain for chickens and such in wooden buildings on skids, whereupon once the rats moved in and you got tired of spearing them with the pitchfork or bashing them with the shovel, you simply hooked up a tractor to the skids and moved the building to another location.
When you move the building, the whole rat colony goes ape and runs for new cover. Hence the term rat stomp — eventually you run out of ammunition or they scurry inside of pitchfork range or try to find safety in your pants leg and brother? If you’ve never had a rat inside your britches scurrying upward you’re missing the second-most important reason to set a record in taking your pants off.
I’ve skewered, shot, stabbed, stomped, punched and wrestled with small furry creatures several times over the years. Never until now did I think somebody would pay to watch it. Heck, I’d pay to not have to do it.
But for Congress to claim the filming of my morning chores offensive and not protected speech? This is how life is for some. What’s next, ban “Dirty Jobs” from the airwaves because he might clean a sewage plant? Ban footage of a slaughterhouse because people think meat comes from the grocery?
Ban footage of concentration camp victims because it might be shocking?
The decision is sound. They have social value. They record the struggle for life and, perhaps in some cases, the depravity we can stoop to. We simply cannot pick and choose based upon the idea that somewhere, some one, might get a kick out of watching it.
– Max
Max, in the first episode, he pumped sewage down in Cottage Grove, I believe it was, one of the suburbs of Madison. They took it to the Dane County treatment plant, anyway. I myself do see a difference between eliminating rats that are destrying your property, and someone in spike heels killing something to tittilate some rather sick people.
Scott-
True, there is a difference, and a big one at that. The problem lies in the way the wording was handled. According to the brief, “§48 applies to any depiction of conduct that is illegal in the State in which the depiction is created, sold, or possessed, “regardless of whether the . . . wounding . . . or killing took place” there.” The judges noted that “Hunting is unlawful in the District of Columbia, for example, but there is an enormous national market for hunting-related depictions…”
So if it had passed, I guess I wouldn’t have been able to buy Field & Stream the next time I’m in DC.
Thank you, sir. I was unaware of the full facts in the case. I thought that it was a ststute against the making of the films, rather than the distribution. If it is a sloppily worded as the Court found, then they would have had no choice but to strike it down.
I think rat stomping videos (by women in high heels) are noxious. But I think it even more noxious that any Congress–and particularly this Congress with its lip curling disdain and sneers at the Tea Party movement could “proscribe new categories of speech when it found that their “societal costs” exceeded their “value”. That was the government argument which 8 out of 9 Supreme Court Justices rejected.
Does anybody believe that Nancy Pelosi–and Obama and Bill Clinton–would not “find” that the “societal costs” of Tea Party protests exceeded their “value”? They’ve already said so. The shoe fits on the other foot too–could not LBJ and Dick Nixon have “found” that the “societal costs” of the Viet Nam war protests exceeded their “value”?
I don’t trust any of the jackasses on Capitol Hill–of either party–to make such determinations. John Roberts and company made the right call. I understand Sam Alito’s dissent because these films are noxious–but that’s not enough.