Legal Commentary

The Court acknowledged that content-based restrictions on speech are permissible in certain "historic and traditional categories long familiar to the bar."  (emphasis added) The categories of "unprotected" speech cited by the court include the following: obscenity, defamation, fraud, incitement, speech integral to criminal conduct.  Interestingly, the Court did not cite Virginia v. Black, 538 U.S. 343 (2003) for the proposition that "true threats" are an unprotected category, though whether this was an oversight or intentional, it is impossible to say. The Court refused to place "depictions of animal cruelty" in an unprotected category simply because the speech had little value compared to its societal costs. Indeed, Chief Justice Roberts rejected the notion that the First Amendment even allows such balancing, stating:  "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it." 

The Court granted that its prior precedent seemed to place categories like fighting words and obscenity in an unprotected or low-value category of speech on the basis of a "simple cost-benefit analysis." But Chief Justice Roberts contended that prior cases recognizing unprotected categories of speech involved not merely cost-benefit analysis but other factors as well, chief of which seems to be the imprimatur of history and tradition.  Perhaps recognizing that this characterization of prior cases was unconvincing, Roberts only gave one example--child pornography--which he placed in the historically unprotected (and presumably highly malleable) category of "speech integral to criminal conduct." 

The clear signal here is that the Court is unlikely to recognize any new categories of unprotected speech in the near future, and  if and when it does recognize an unprotected category,  it will only be because history authorizes it.  As Roberts wrote,  "Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such on our case law. But if so, there is no evidence that "depictions of animal cruelty" is among them."  For all practical purposes, Roberts seems to suggest,  the categories of unprotected speech are closed. 

Once the Court decided that "depictions of animal cruelty" receive full First Amendment protection, the outcome of the case was never really in doubt.  The federal statute, as written, criminalized not just depictions of animal torture but also depictions of the wounding or killing of animals.  The Court noted that the statute could be used to prosecute purveyors of hunting videos. The Court therefore concluded that the statute was overbroad, despite its exemption for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." (emphasis added).  The Court observed, and rightly so, that "serious value" cannot be the test of First Amendment protection, for "[m]ost of what we say to one another lacks . . . serious value."

The Court also rejected the Government's promise that it would only prosecute cases involving extreme cruelty, in the process emphasizing how deeply it has bought into the libertarian conception of the First Amendment.  "[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige."  [Full disclosure:  I've also bought into this conception.  See my article, Nobody's Fools.]  However, the Court explicitly left open the possibility that a narrower statute limited to depictions of extreme animal cruelty might survive constitutional scrutiny.

Alito dissented.