Free speech is free speech, except when it’s not

Renee James Contributor
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Two recent news stories have left me puzzled. That’s nothing new but in this case, I may need some help sorting this out.

Story 1: The California Supreme Court will rule on whether or not the state may legally ban sales or rentals of violent video games to minors. The 9th Circuit Court of Appeals stated that the law violates the first and fourteenth amendment rights of children. How being allowed to buy Grand Theft Auto 4 when you’re ten years old upholds your free speech or citizenship rights is beyond me but let’s move on.

Story 2: A Virginia man, Robert Stevens, was convicted and sentenced to three years in prison for creating several videos that included scenes of dog fighting. The 1999 Depiction of Animal Cruelty Act prohibits the creation, sale and possession of a depicter of animal cruelty, with the intent to sell it. (Stevens’s video was sold online.)

So we have California trying to figure out if children should be allowed to rent or purchase violent video games, and Virginia convicting an adult who made and sold videotapes depicting animal cruelty. Got it.

While California sorts out its conundrum, our Supreme Court ruled on the Stevens case last week. It overturned his conviction in an 8-to-1 vote because this is a free-speech issue. Their explanation was that the law created a “criminal prohibition of alarming breadth.” Stevens has a right to speak about, tape, film or otherwise express his views of dog fighting any way he chooses. A Humane Society of the United States (HSUS) press release reported that the court called the law “overbroad, because it might capture some depiction of acts that are illegal but not ‘cruel’ in the common usage of the term.”

Chief Justice John Roberts stated that as a free-floating test for First Amendment coverage, “that idea [curtailing these kinds of expressions] is startling and dangerous.” Justice Alito dissented and stated, “…the government could legitimately balance free speech against purported societal costs.” Perhaps like the cost to a society that creates and sells this kind depravity in the name of free speech.

Prosecutors argued that the 1999 Act was necessary as it was primarily intended to prevent sales of crush videos. (No, I didn’t know either: crush videos are fetish films that feature small animals being crushed by women’s feet. According to the HSUS, these videos also include the intentional crushing, burning, drowning and impaling of puppies, kittens and other animals for the depraved purpose of peddling videos of such extreme acts of animal cruelty for the sexual titillation of viewers.) The law included an exemption for works that have ‘serious’ value.

Organized groups who oppose dog fighting have addressed the court’s ruling. A bill introduced in the House almost immediately following the decision seeks to more narrowly define the law and again criminalize the very worst of this activity, the crush videos.

A number of organizations supported the Courts decision, among them the Media Coalition, a First Amendment watchdog group. “…giving the government freewheeling authority’ to judge the social worth of words and images is a dangerous proposition,” said David Horowitz, executive director of Media Coalition.

I agree. It is a dangerous proposition. The government should not judge our words or the images we create. It can’t regulate what we say, how we say it, or whether or not we can videotape it and then sell it.

But excuse me: “freewheeling authority?” It’s a specific case: videos of dog fights. Dog fighting is illegal. However, the court upholds two beliefs about the First Amendment. There’s the act—even an illegal one, like dog fighting—that should be prosecuted. Any resulting expression of that act—like a dog fighting video—should not be. The act is separate from the expression of it. That expression is protected free speech.

Exception: child pornography. The Supreme Court ruled that this was a whole different question. This crime, as well as documenting or communicating it in any way, is in all ways illegal. It’s simply too heinous for society to bear.

But what about race-based violence? Live hate speech and violence is a crime but taped segments of the same—and sold to fans—are free speech? Couldn’t an attorney argue that videos of those (criminal) acts fall under protected speech? “But I didn’t do it, Your Honor. I just recorded it and then sold the tape. It’s the way I express myself.”

Here’s one more perspective. This may all turn out to be good news for the children of California. If they don’t get to buy Manhunt or Manhunt 2, they can always pick up a dog fight DVD.

Renee James writes social commentary and keeps track of the things that mystify her on her blog: It’s not me, it’s you, found at reneeaj.blogspot.com. Her email address is raaj3@msn.com.