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BOB GARFIELD: Dogs ripping each other’s throats out, cats crushed under heel – it is cruel and sickening and illegal, and videos depicting such perversions are [SIGHS] free speech. This week, the Supreme Court ruled that videos or photos of animal cruelty, however objectionable they may be, are protected under the First Amendment. In 2004, a Virginia man named Robert Stevens was indicted under a federal statute that made it illegal to, quote, “create, sell or possess a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce.” Stevens, who was selling dog-fighting videos, fought the case on free speech grounds. University of Chicago Law Professor Geoffrey Stone filed an amicus brief on behalf of Stevens and says that those who care about a robust First Amendment should applaud the decision.

GEOFFREY STONE: The first thing to understand is that a very basic principle of First Amendment law is the fact that an act is illegal does not mean that a depiction of the act is illegal. Similarly, in the Pentagon Papers dispute, where Daniel Ellsberg illegally stole the Pentagon Papers from the government, he presumably could have been criminally prosecuted but The New York Times and The Washington Post could not be punished for publishing the Pentagon Papers, even though they knew that they'd been stolen. So basically First Amendment law, in general, draws the sharp distinction between punishing an underlying act and punishing speech that derives from the underlying act.

BOB GARFIELD: Kiddie porn being the exception because of the presumption that the depiction of the act also encourages it, creates a market for it.

GEOFFREY STONE: Right. The child pornography issue has been carved out by the Supreme Court as a very narrow and limited exception. Much child sexual abuse is done because of the market for child pornography, and in order to prevent that underlying criminal act, the child sexual abuse, we want to take away that incentive. In the context of animal cruelty, it’s certainly true that there’s a correlation between the animal cruelty and money that can be made off the depictions, but the truth is, for the most part, people engage in activities, like, say, dog fights, and their incentive for doing it is not so much to make money off a video. The unlawful activity’s likely to occur whether or not it’s being produced in a depiction. A second difference is that society tolerates all sort of activity that is animal cruelty. For example, hunters, who will go out and shoot animals for nothing but the sport of it. That’s legal in almost all states. We eat animals and we authorize individual and corporate butchers to slay animals in all sort of ways, that have raised them, for that matter that would be regarded as cruel. But with child sexual abuse we never allow that to take place. So there’s a very large difference in the state interest. One might be important enough to justify restrictions of speech, the other is not.

BOB GARFIELD: Getting back to this question of the link between the behavior and the depictions of the behavior, there’s a subset of animal cruelty depictions, this category called “crusher” videos. And I'll try not to be too graphic about this, but it serves a particular sexual fetish of men who like to watch women in heels using their shoes to harm animals. It, it seems to me that there is – there is an inextricable link between the filming of these things and the actual animal cruelty, itself. Does that lend itself to a narrower statute that could deprive that subset of videos of its First Amendment protection?

GEOFFREY STONE: The court left open the question whether it would be possible to draft a much more narrowly drawn statute that could meet First Amendment requirements and, therefore, it’s simply an unresolved question. I actually think it would be pretty difficult to justify the extension of the child pornography analogy to even that example, largely because the First Amendment generally presumes that the right response to bad acts undertaken to produce speech is to prohibit the bad acts. And so, what a court would likely say in this situation is, look, if you’re really concerned about people engaging in this activity then ramp up the sentence and leave the speech alone. The basic assumption is, well, if you make life imprisonment for stomping on gerbils in high heels, then people won't do it.

BOB GARFIELD: Geoff, I have to ask you about one footnote to this case, and that was an argument by the Solicitor General Elena Kagan that the court should consider First Amendment exemptions on an ad hoc basis, an argument that kind of made you crazy and, as Kagan is a leading candidate for the Supreme Court, might be a bit concerning. Could you tell me what her argument was and why you consider it so kind of off the charts?

GEOFFREY STONE: There are a very few areas, such as false statements of fact or threats where the court has recognized that certain narrowly defined categories of speech do have only low value to the purposes of the First Amendment and can be restricted. But it has engaged in that analysis largely with a concern with the historical recognition of these categories, not with an open-ended, anything goes, we can decide on a case-by-case basis whether we think this particular speech is valuable or not. And what Kagan’s argument invited was casting aside this very rigid, contained analysis of value and instead opened the door to a much more freewheeling approach. And it was a really dangerous – that’s Chief Justice Roberts’ words – it really was a dangerous argument for the Solicitor General to make. It would have, if accepted, completely revolutionized a large part of First Amendment doctrine, losing the gains we've made throughout the 20th century.

BOB GARFIELD: Should she be the President’s nominee to the court in the coming weeks, do you expect this issue to come up in the confirmation hearings?

GEOFFREY STONE: It might come up, and I think that if it does, then Kagan would probably say she inherited this case; when she became solicitor general it was already in process. Nonetheless, I have to say that I was surprised that Elena didn't take a red pen and scratch those parts of the brief out.

BOB GARFIELD: Geoff, thank you so much.

GEOFFREY STONE: My pleasure.

BOB GARFIELD: Geoffrey Stone is a professor at the University of Chicago Law School.

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