All You Are Is Wrong (Another Verse)

Last week's decision in the Phelps case continues to provide examples of commentators getting the background wrong in meaningful ways.  Stanley Fish has a column up at his New York Times blog in which he casts his lot in with Alito's dissent against the majority.  While Fish (like Alito) reaches the wrong conclusion, he at least deals with the case as it existed (unlike the subject of my post last week).

Unfortunately, Fish leaves a very wrong impression about an older case along the way:

Justice Samuel Alito was the lone dissenter. He was also the lone dissenter in a case decided a year ago (United States v. Stevens) when the Court stuck down a statute criminalizing the sale of videos depicting kittens being crushed to death by the high-heeled 'spike' shoes of a dominatrix. The majority opinion in both cases was written by Chief Justice John Roberts, and the result in Snyder was predictable, given Roberts’s rejection in Stevens of 'any balancing of relative social costs and benefits' when it comes to free expression rights: they trump.[/quote]

I don't quibble with Fish's description of the Roberts v. Alito dynamic in those cases, but his description of Stevens is incomplete, at best.

Stevens was charged under 18 USC §48, a statute that was enacted as a result of the very stuff Fish pointed out (citations omitted):

The legislative background of §48 focused primarily on the interstate market for 'crush videos.' According to the House Committee Report on the bill, such videos feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters.  Crush videos often depict women slowly crushing animals to death 'with their bare feet or while wearing high heeled shoes,' sometimes while 'talking to the animals in a kind of dominatrix patter' over '[t]he cries and squeals of the animals, obviously in great pain.'  Apparently these depictions 'appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.' The acts depicted in crush videos are typically prohibited by the animal cruelty laws enacted by all 50 States and the District of Columbia.

But the language of §48 was quite a bit broader (citations omitted);

Section 48 establishes a criminal penalty of up to five years in prison for anyone who knowingly 'creates, sells, or possesses a depiction of animal cruelty,' if done 'for commercial gain' in interstate or foreign commerce.  A depiction of 'animal cruelty' is defined as one 'in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,' if that conduct violates federal or state law where 'the creation, sale, or possession takes place.' In what is referred to as the 'exceptions clause,' the law exempts from prohibition any depiction 'that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.'

In fact, the videos Stevens was charged with distributing (not making) weren't crush videos.  Instead, they involved animal fighting (citations omitted):

Stevens ran a business, 'Dogs of Velvet and Steel,' and an associated Web site, through which he sold videos of pit bulls engaging in dogfights and attacking other animals. Among these videos were Japan Pit Fights and Pick-A-Winna: A Pit Bull Documentary, which include contemporary footage of dogfights in Japan (where such conduct is allegedly legal) as well as footage of American dogfights from the 1960's and 1970's.  A third video, Catch Dogs and Country Living, depicts the use of pit bulls to hunt wild boar, as well as a “gruesome” scene of a pit bull attacking a domestic farm pig.

The Court went on to concluded that the statute, as written, was fatally overbroad and rejected the Government's "trust us, we'll read it narrowly" attempt to preserve it (a low moment of Justice Kagan's term as Solicitor General).  As written, §48 simply covered too much speech that wasn't in any way involved with the sick shit that motivated the law in the first place.  Importantly:

the Government makes no effort to defend the constitutionality of §48 as applied beyond crush videos and depictions of animal fighting.

The Court specifically declined to say whether a statute narrowly tailored to deal just with crush videos would survive First Amendment scrutiny.

This may sound like legal nit picking, but it's more important than that.  Both the Phelps case and Stevens involved speech that most folks find despicable.  But in both cases it was impossible to do something about that speech (either bad it or hold the speakers civilly liable) without treading on the kind of important speech that most folks would agree can't be squelched.  That's the dynamic that's present in every First Amendment case. 

It's simply incorrect that in Stevens the Court "stuck down a statute criminalizing the sale of videos depicting kittens being crushed to death by the high-heeled 'spike' shoes of a dominatrix."  It struck down a law that went well beyond that.  By getting the details wrong about Stevens, Fish implies that the non-Alito Court is full of heartless automatons.  That's just not the case.