Held Sacred: Free Speech
At some point here, I’m going to write a further post on how “sunshine” and whatnot can in fact make many situations worse rather than always making things better. Today isn’t that day alas. While trolling the Internet, I learned that kitty porn crush videos were an essential element of our freedom. This didn’t bother me too much until I learned that it was Chief Justice Roberts offering this opinion in United States v. Stevens. I quote Stanely Fish here:
The proverbial ordinary citizen, however, may be surprised to learn that, according to Chief Justice John Roberts’ majority opinion, the First Amendment must be read to allow the production and dissemination of so called “crush videos,” videos (and I quote from Roberts’ opinion) that “feature the intentional torture and killing of helpless animals” often by women wearing high-heeled “spike” shoes who slowly “crush animals to death” while talking to them in “a kind of dominatrix patter” as they scream and squeal “in great pain.”
…
He simply invokes the post-New York Times v. Sullivan mantra and flatly rejects any “balancing of relative social costs and benefits “when it comes to speech. “The First Amendment,” he declares, “reflects a judgment by the American people that the benefits of its restrictions . . . outweigh the costs,” a judgment that he insists can not be revised “simply on the basis that some speech is not worth it.” In short, the balancing Roberts rejects has already occurred in the empyrean of First Amendment theory and the conclusion, given in advance, is that, aside from a direct incitement to violence or an act of treason, no expressive activity can be worthless enough to forfeit its constitutional protection. So much for the kittens.
Do read the whole thing. Needless to say that this is another reminder that just because one is right on one issue, allegedly, doesn’t mean that he isn’t wrong on a whole mess of issues. It’s days like these that remind me that we shouldn’t evaluate people merely on what is a major part of our own agenda, but what is a major part of the prospective person’s agenda.
Henry:
I’m surprised that you didn’t quote Fish’s conclusion:
If Jacques Derrida reads US media, I hope he’s more amused than dismayed.
Henry doesn’t get credit today. That’s me.
For the record, let’s note that it was an 8 to 1 decision, with Justice Alito dissenting. Roberts also expressed the horror of the entire Court at the subject matter of the videos, and his decision affirms that the actual torture and killing of animals can and should be criminally sanctioned. The question before the Court (again) was whether speech can be banned because it offends our sensibilities. That broader question is worth debating, including the question, “Who decides?”
Interesting that it was an 8-1 decision with Alito as the dissenting vote. Rare for Alito or any justice to be the lone dissenting vote.
Henry always gets credit. It’s interesting to me, given the near-unanimity of the Court and the identity of the only dissenting justice, that this is the lesson you take from this:
It’s days like these that remind me that we shouldn’t evaluate people merely on what is a major part of our own agenda, but what is a major part of the prospective person’s agenda.?
Are you suggesting that defending the right to disseminate kitten torture videos is a ‘major part of the…agenda’ of Justices Sotomayor, Kennedy, Ginsberg, Roberts, Stevens, Scalia, Thomas, and Breyer?
The proverbial ordinary citizen, however, may be surprised to learn that, according to Chief Justice John Roberts’ majority opinion, the First Amendment must be read to allow the production and dissemination of so called “crush videos” . . .
Actually, I haven’t had much time to spend on this issue, but I do not believe the above statement is correct. The court struck down a law that it considered to be overly broad. Here is the final paragraph of the decision:
The court threw out a law that was so broad it would cover videos about hunting. Also, the court said nothing (that I have read so far) that allow someone to legally perpetrate animal cruelty in order to film and sell it. I can’t imagine any state has animal-cruelty laws so lax that crushing kittens is legal there!
The court leaves open the possibility that it would be constitutional to prohibit the making and distribution of films that depict extreme animal cruelty. However, the law under review was not limited to that, and so they had no choice to throw it out.
(I never thought I would find myself defending Justice Roberts, but he is getting a bum rap on this one.)
Please David Nichol – do not confuse us with the facts.
Sorry, M.Z.,… “Posted by M.Z.” only shows on the main VN page with story lead-ins, not on this story page, which is what I was writing from. The box immediately under the story on this page reads
Yes, my reading of the reports of the decision (haven’t read the case yet) is that the law was too vague and therefore would ban too much, even more than what was intended. It apparently wasn’t too controversial a decision if Scalia & Stevens could hold hands on it, though I’m interested to see why Alito dissented.
I understand that the justices support dissemination of kitty porn even though they don’t support the actual production of it, theoretically. As was noted by others (maybe even Alito) the logic is the opposite why kiddie porn was ruled illegal. And as Alito did point out in his dissent, there were ways to rule without sanctioning kitty porn. I think Fish is crystal clear in his commentary on how this came about, and I think he is competent enough to discuss it.
For folks that could find government funding of abortion in the health care bill, there seems to be absolute blindness to the judiciary’s complicity in the production and dissemination of morally offense materials.
For folks that could find government funding of abortion in the health care bill, there seems to be absolute blindness to the judiciary’s complicity in the production and dissemination of morally offense materials.
Heh. Well, in one case you’re ignoring the text of the health care bill (the lack of a prohibition the USCCB regarded as essential); in the other, the text of the majority opinion. At least you’re consistent.
Well, the USCCB is free to be wrong. Here is part of the parts of Section 1303 of the HC bill:
(ii) STATE REQUIREMENT- If a State requires, in addition to the essential health benefits required under section 1323(b)(3) (A), coverage of services described in subparagraph (B)(i) [this is the section on abortion-mz] for enrollees of a community health insurance option offered in such State, the State shall assure that no funds flowing through or from the community health insurance option, and no other Federal funds, pay or defray the cost of providing coverage of services described in subparagraph (B)(i). The United States shall not bear the insurance risk for a State’s required coverage of services described in subparagraph (B)(i).
…
(2) PROHIBITION ON THE USE OF FEDERAL FUNDS-
(A) IN GENERAL- If a qualified health plan provides coverage of services described in paragraph (1)(B)(i), the issuer of the plan shall not use any amount attributable to any of the following for purposes of paying for such services:
(i) The credit under section 36B of the Internal Revenue Code of 1986 (and the amount (if any) of the advance payment of the credit under section 1412 of the Patient Protection and Affordable Care Act).
(ii) Any cost-sharing reduction under section 1402 of thePatient Protection and Affordable Care Act (and the amount (if any) of the advance payment of the reduction under section 1412 of the Patient Protection and Affordable Care Act).
(B) SEGREGATION OF FUNDS- In the case of a plan to which subparagraph (A) applies, the issuer of the plan shall, out of amounts not described in subparagraph (A), segregate an amount equal to the actuarial amounts determined under subparagraph (C) for all enrollees from the amounts described in subparagraph (A).
(C) ACTUARIAL VALUE OF OPTIONAL SERVICE COVERAGE-
(i) IN GENERAL- The Secretary shall estimate the basic per enrollee, per month cost, determined on an average actuarial basis, for including coverage under a qualified health plan of the services described in paragraph (1)(B)(i).
(ii) CONSIDERATIONS- In making such estimate, the Secretary–
(I) may take into account the impact on overall costs of the inclusion of such coverage, but may not take into account any cost reduction estimated to result from such services, including prenatal care, delivery, or postnatal care;
(II) shall estimate such costs as if such coverage were included for the entire population covered; and
(III) may not estimate such a cost at less than $1 per enrollee, per month.
(3) PROVIDER CONSCIENCE PROTECTIONS- No individual health care provider or health care facility may be discriminated against because of a willingness or an unwillingness, if doing so is contrary to the religious or moral beliefs of the provider or facility, to provide, pay for, provide coverage of, or refer for abortions.
(b) Application of State and Federal Laws Regarding Abortion-
(1) NO PREEMPTION OF STATE LAWS REGARDING ABORTION- Nothing in this Act shall be construed to preempt or otherwise have any effect on State laws regarding the prohibition of (or requirement of) coverage, funding, or procedural requirements on abortions, including parental notification or consent for the performance of an abortion on a minor.
(2) NO EFFECT ON FEDERAL LAWS REGARDING ABORTION-
That said, I think Alito’s dissent is well done. I particularly liked this section:
In sum, we have a duty to interpret §48 so as to avoid serious constitutional concerns, and §48 may reasonably be construed not to reach almost all, if not all, of the depictions that the Court finds constitutionally protected. Thus, §48 does not appear to have a large number of unconstitutional applications. Invalidation for overbreadth is appropriate only if the challenged statute suffers from substantial overbreadth–judged not just in absolute terms, but in relation to the statute’s “plainly legitimate sweep.” Williams, 553 U. S., at 292. As I explain in the following Part, §48 has a substantial core of constitutionally permissible applications.
M.Z.,
Nothing in the section of the bill you quoted makes this any less true:
The statute appropriates billions of dollars in new funding without explicitly prohibiting the use of these funds for abortion, and it provides federal subsidies for health plans covering elective abortions. Its failure to preserve the legal status quo that has regulated the government’s relation to abortion, as did the original bill adopted by the House of Representatives last November, could undermine what has been the law of our land for decades and threatens the consensus of the majority of Americans: that federal funds not be used for abortions or plans that cover abortions. Stranger still, the statute forces all those who choose federally subsidized plans that cover abortion to pay for other peoples’ abortions with their own funds.
http://www.usccb.org/comm/archives/2010/10-054.shtml
The USCCB’s statement isn’t logically consistent.
a. it provides federal subsidies for health plans covering elective abortions.
b. Stranger still, the statute forces all those who choose federally subsidized plans that cover abortion to pay for other peoples’ abortions with their own funds.
If a is true, then who gives a rat’s patoot about b? But a isn’t really true, so we are left with the USCCB being incredulous that a person that chooses a plan that pays for abortion will see their plan pay for abortion. Needless to say, private sector plans already do this. The government is creating a market for private sector plans. So when the private sector demands that coverage for abortion be provided to its employees, and necessarily funds those abortions is one thing. When the federal government creates an exchange where people are free to choose plans that cover abortion and necessarily require the participants in the plan to pay for them, we have an unconscionable evil.
M.Z.,
The point is that federal funding will be paid out to insurers for plans that cover abortion. This is de facto federal funding of abortion, regardless of whether or not insurers are instructed to maintain a superficial segregation of the funds. The bishops were not incorrect to point this out. If non-partisan sources like Factcheck.org acknowledge this, why is it that you feel obliged to deny it?
http://factcheck.org/2010/04/the-abortion-issue/
They do no such thing. “de facto” is covering ground you’ve neglected to establish. I’m also thinking ‘de facto’ doesn’t mean what you think it means. Justice Roberts decision is ‘de facto’, or is in fact, a blessing of kitty porn.
The point is that federal funding will be paid out to insurers for plans that cover abortion.
Road funding will go to roads that abortionists and abortion users drive on. Are you proposing we eliminate roads? And if you are going to offer a quid pro quo objection, you shouldn’t state that any health care funds are to be segregating from funds raised to pay for abortions. Logically, you should oppose road funding if this is in fact your position.
M.Z.,
Sigh. Money is fungible. Providing funding to individuals to purchase plans that cover abortion, even if the insurers are told to segregate the funds, funds abortions de facto, if not de jure.
As to kitty violence, as I said, I think Alito’s dissent has merit; one of the standard canons of statutory interpretation is that a statute should be interpreted so as to avoid a constitutional infirmity when possible. At the same time, 8 out of the 9 justices disagreed that this was possible here. You seem to be fixated on Roberts here, and I’m not clear on why; writing the majority opinion on this case was probably him taking one for the team. It’s not the type of opinion justices jump at the chance to write because it doesn’t cover much new ground, and it subjects the author to cheap shots like this post, even if the verdict is nearly unanimous. I don’t plan to devote an evening to analyzing whether the statute really was over-broad or not or which of the canons of statutory construction was most appropriate here; the case isn’t that significant, and even your interest in it seems to be limited to taking cheap shots at Justice Roberts, as you have don’t appear to have any expertise in First Amendment law.
Justice Roberts decision is ‘de facto’, or is in fact, a blessing of kitty porn.
I disagree completely. Even if Roberts had found that kitty porn was constitutionally protected speech, which he definitely did not, that would not constitute a “blessing.” The Supreme Court held that flag burning was constitutionally protected, but they did not give it their blessing.
The court did not rule on the constitutionality of banning “crush videos” and said so quite explicitly.
This is going to longish.
Money is fungible.
This is not a principle of moral theology, and it is distressing to see it trotted out so often. There are a number of problems with it.
1) There are certain basic goods that are to be provided because they respect human dignity. I was talking with someone recently, and he argued that it would be wrong for society to pay for palliative care for a prostitute suffering from a terminal disease that she likely received from her work. His argument was that any money (or service) you gave her would be supporting prostitution. Needless to say, I had other issues with his argument like his sadistic will to see someone suffer long after their choices were made. That said, we also provide prisoners food and shelter. Certainly an argument could be sustained that we are blessing criminal enterprise by providing food and shelter, but the argument would be either wrong or inconsequentially true. People seem to generally have trouble with universal human rights. This is at base what the issue is in the torture debate. Once someone is established as evil, we claim they no longer are entitled to these rights.
2) There seems to be a Rube Goldberg or Butterfly Effect theory of cooperation going on. Needless to say, there is gross inconsistency when people desire to apply the Butterfly Effect theory of remote cooperation with evil. For example, I would speculate there is little intersection in the Venn diagram between groups that holds buying goods from China is cooperating in the evil of forced abortion and human rights abuses, that hold paying for STD prevention education is cooperation with that organization’s evil of performing abortions, that funding soup kitchens supports the secular evil of entangling the state in religion or the moral evil of supporting organizations that teach things such as the Catholic Church being the whore of Babylon. This is not to say there is anything wrong with raising consciousness or acting on that consciousness.
Are there no laws against animal cruelty ? How is this “speech” ? If someone films something illegal for fun and profit, how is that not the fruit of the poisonous tree ? Of course, hunting is legal and so are chicken factories etc. Not to mention the horrid traps and poisons available at every Home Depot. Glue traps starve animals. Yet, you can buy them. As a vegetarian who lives with cats I’m not sure how I’d react if I caught someone crushing a kitten. I don’t view it that differently from hurting humans. Intentionally inflicting suffering on someone who cannot consent should be a crime. Consent is the crucial element – the Abu Ghraib abuses might be fun for some people in the BDSM world, for example. One interesting line to draw would be between documentary and snuff video.
Free speech in Austria: Denying the Holocaust, sporting Nazi paraphernalia etc. is a crime. David Irving spent time in prison, for example. Austrian libel/slander laws tend to be stricter when it comes to insults (There is a misdemeanor called “insulting one’s honor”) and allegations, too. There can be amusing situations when the accused has to prove his insult, esp. when he wins.
In Austrian media reports, before someone’s convicted, the suspect’s last name is only given by its first letter.
While I’m all for freedom of speech, press etc., it seems that the definition of speech is far too broad.