Free Speech and Killing Kittens

Here’s a provocative post from Stanley Fish:

To anyone who has been following First Amendment jurisprudence in the past 40 or 50 years, the recent Supreme Court decision (United States v. Stevens, April 20) striking down a statute criminalizing the production and sale of videos depicting animal cruelty in a manner intended to satisfy a particular “sexual fetish” will come as no surprise.
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.” How has it come to this?

And here’s his conclusion, which is pretty critical of free speech absolutists:

But Roberts isn’t having any. 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.

One often-heard objection to religion is that horrible acts are done in its name. It is an irony of history that the First Amendment, opposed by Justice Jackson in a famous passage to the establishment of any orthodoxy, has itself become an orthodoxy, a religion, a veritable deity, and one that demands an absolute fidelity.

So-called “crush videos” are an easy target, so let’s try something more ambiguous. I think South Park is crude and humorless. From what I’ve read, the much-discussed Mohammed caricature episode offers precious little in the way of valuable social commentary on Islam or anything else. Others may disagree. So you’ll understand my reluctance to allow extremely subjective judgments about the value of individual speech acts to dictate the scope of the First Amendment .  Legal protections sometimes sanction unintended – and distasteful – activities on the margins, but this doesn’t strike me as a reason to radically alter our approach to public speech.