The Quiet Libertarians
posted at 4:01 pm on April 21, 2010 by Dafydd ab Hugh
The Supreme Court of the United States just issued a rare (these days) 8-1 ruling; even more interesting, Chief Justice John Roberts wrote the opinion — and the lone dissenter was Justice Samuel Alito.
The facts are interesting but ultimately irrelevant, as the real issue is freedom of speech vs. propriety and empathy: A man who sold videos depicting animal cruelty, likely for a sick form of pornography called a “crush fetish” — in which viewers are sexually aroused by seeing people crush various inanimate objects, invertibrates, and even live mammals — was arrested under a 1999 federal law that made trafficking in such videos a felony. Robert J. Stevens was convicted and sentenced to 37 months in the stripey hole, but the 3rd Circus Court of Appeals (in Philadephia) struck down the law as unconstitutional in 2008; today the Supreme Court affirmed that decision.
It was a First Amendment case with a very unsavory and sleazy defendant, so it’s no wonder the four Court liberals were on board. What is more surprising to veteran court-watchers is that all but one of the “conservative” justices were aboard as well:
Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said that the law had created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”
Roberts held that the First Amendment prohibited such an over-broad law as this one on grounds of freedom of speech, though he did not rule out the constitutionality of a much narrower and more specific prohibition of crush videos depicting actual abuse of animals.
I suspect that forty years ago, a paleoconservative majority would have reinstated the law, for the very reason that the minority wanted it overturned: The conservatism of earlier decades saw nothing wrong with using government power to enforce traditional morality, customs, and traditions — just as left-liberalism saw nothing wrong with using government power to tear down those same traditions, customs, and “repressive” moral codes.
But Justice Sandra Day O’Connor’s retirement and the unexpected death of Chief Justice William Rehnquist, followed by George W. Bush’s appointments to take their place (Alito and Roberts), triggered a sea-change in the Court’s outlook. The four constitutionalist justices (Roberts, Alito, Antonin Scalia, and Clarence Thomas) seem to reject “big-government” conservatism, by and large, in favor of a sleeker, “small-government,” libertarian vision of America — one where the response to vile and depraved speech is not suppression but commonsensical, ethical, and rational speech:
It has been more than a quarter-century since the Supreme Court placed a category of speech outside the protection of the First Amendment. Tuesday’s resounding and lopsided rejection of a request that it do so, along with its decision in Citizens United in January — concluding that corporations may spend freely in candidate elections — suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech.
Roberts noted that the law was so vaguely written that it could apply even to ordinary hunting videos, since some areas of the country ban hunting. Roberts argues both slippery slope and unintended consequences; his bias is against banning speech of any kind, though as noted, he will accept bans that are very, very narrowly construed and precisely tailored. He opposes the open-ended prohibitions preferred by activist judges and justices.
Thus, the high Court has ruled by an overwhelming margin that freedom of speech covers even repugnant speech, so long as the speech isn’t an integral element in the commission of an underlying crime… which sounds obvious but has all too oft been ignored, forgotten, or deliberately stomped into the dust by earlier courts, congresses, and presidents. Under one of President Barack H. Obama’s Democratic predecessors, Woodrow Wilson, Congress even banned speech that was merely critical of the federal government.
Alito’s dissent appears to be that the videos in question are integral elements in the crime of animal cruelty; but the law as written was so broad it would probably cover even animation, as well as Roberts’ example of hunting videos:
The government argued that depictions showing harm to animals were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion. “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” he wrote.
The chief justice acknowledged that some kinds of speech — including obscenity, defamation, fraud, incitement and speech integral to criminal conduct — have historically been granted no constitutional protection. But he said the Supreme Court had no “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
I very much like the trend. Combined with the Court’s ruling in District of Columbia v. Heller, 554 U.S. ___ (2008) (striking down the D.C. handgun ban) and the Court’s acceptance of certiorari in McDonald v. Chicago and NRA v. Chicago (which may “incorporate” the Second Amendment to state and local legislation), along with the aforementioned campaign-finance decision in Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), I believe we are on the brink of a new judicial era, where freedom, liberty, and personal responsibility supplant the current nanny-state. Under the ancien régime, even the possiblity of injudicious use of liberty led the powers and thrones to ban it in the name of public order.
I say hip hip, chin chin… and about bloody time. But the real test will come when the ObamaCare mandate comes before the Court. Never before has Congress passed a law ordering all Americans to purchase a specific product from a private (but government controlled) entity; I cannot imagine that such a blatantly unconstitutional law would not be found so by the four constitutionalist justices. But the big question, as always, is on which side of the bed Justice Anthony Kennedy, the swingin’ justice, arose that morning.
If he agrees with Roberts, Scalia, Thomas, and (I am convinced) Alito that there is no grant of rights for Congress to order Americans to buy products — what’s next, a federal mandate to buy toothpaste, fruits and vegetables, and Che Guevera t-shirts? — and the mandate is struck down, that’s wonderful. But the victory will not be complete unless the decision is broad enough to put actual teeth into Article I, Section 8 of the Constitution, “the Powers of Congress”: That is, it’s only a great libertarian victory for America if the Court finally agrees that Congress cannot legislate in areas where it is not granted authority to legislate, even if it intones the magical spell, “regulate interstate commerce.”
Making us buy insurance from companies forbidden from cross-state commerce cannot rationally be “regulating interstate commerce;” if the Left can get away with that sleight of hand, they can get away with murder. (Oh, wait — I believe President B.O. recently ordered the summary killing of an American citizen, Anwar al-Awlaki, thought to be a member of al-Qaeda. And note that the previous sentence would have earned me a stretch in prison under Wilson’s Sedition Act of 1918.)
If tyranny is a mental disorder like addiction — the more you dictate, the more you need to dictate — then the first step on the road to recovery is to strictly limit the authority of Congress and the president to meddle in every state and local issue that bubbles up, as of course the Founders intended when they ratified the Constitution in the first place.
I’m glad that the Court found for freedom of speech in this case, as evil as that “speech” (video) is; I’m certain that Congress can enact a more narrow ban that remains within the constitutional purview. But I’ll save my real celebrating for when the Court routinely begins telling Congress, “you’ve overdrawn your account at the First National Bank of Authoritarianism.”
Then perhaps the Court can turn its attention to the activist “beam” in its own eye.
Cross-posted on Big Lizards…
Recently in the Green Room:
- Programming note: Guest-hosting the Hugh Hewitt Show tonight w/ MKH
- Obligatory Bill Clinton drew pictures of man parts on classified documents post
- Winning entry for HHS’s ObamaCare propaganda video contest: “Forget About the Price Tag”
- The Ed Morrissey Show on hiatus
- Health records ‘data security,’ Canada-style