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Christopher M. Finan: Supreme Court Case Threatens Free Speech

In today's post, Christopher M. Finan, president of the American Booksellers Foundation for Free Expression, explains why booksellers should care about what happens to Robert J. Stevens, a Virginia man who has been convicted of creating videos that contain scenes of dogfighting. Finan is the author of From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America. This post originally appeared at the ABA's Bookselling This Week.

Book Cover for From the Palmer Raids to the Patriot Act Why should booksellers care about what happens to Robert J. Stevens?

Stevens is a Virginia man who has been convicted of creating videos that contain scenes of dogfighting. I'm sure there are many people, including some booksellers, who would applaud the fact that he was sentenced to three years in jail.

But U.S. v. Stevens is now before the U.S. Supreme Court, and it could become the most important First Amendment case in a generation. Civil libertarians are deeply concerned that the Court may use the case to begin dismantling the protections for free speech that have been built up over the last 70 years. If that happens, booksellers will find themselves facing a government armed with a broad new power to censor speech.

Stevens was prosecuted under a federal law that was passed in an effort to suppress the sale of so-called "crush" videos. These videos are a genre of fetish films that depicts small animals being crushed to death by women's feet. When the bill was introduced in Congress in 1999, it faced little opposition because it appeared to be focused on a very specific type of material that bordered on obscenity. Obscenity is not protected by the First Amendment.

In fact, however, the law applies to a much broader range of material. It makes it a felony to create or sell a depiction of animal cruelty, including a photograph, film, or audio recording of an animal being intentionally harmed or killed. President Bill Clinton acknowledged the breadth of the bill when he signed it into law by promising that the Justice Department would only enforce it against producers and distributors of crush videos.

There have been three prosecutions under the law -- none involving crush videos. Stevens was indicted for producing three videos extolling the virtues of pit bulls. The films do contain scenes of pit bulls fighting and attacking other animals, but Stevens opposes dogfighting in a self-published book, Dogs of Velvet and Steel: Pitbulls: A Manual for Owners. Stevens did not stage or film the fights. Some of the footage was more than 30 years old and some came from Japan, where dogfighting is legal.

It is clear that the law applies even more broadly. Since it covers any depiction of animal cruelty in whatever country it may have occurred, including countries where the acts are legal, it could apply to books and films about bullfighting. In overturning the law in 2008, the Third Circuit Court of Appeals observed that even depictions of killing deer or catching fish could fall within the act. It might also be used against animal rights activists who attempt to shock the public with graphic depictions of slaughterhouse practices or the inhumane treatment of farm animals.

There is an exemption for material that has "serious religious, political, scientific, education, journalistic, historical, or artistic value."  However, the law leaves it up to judges and juries to decide this question on a case-by-case basis. Stevens presented expert witnesses in an effort to convince the court that his films are documentaries, but their testimony was rejected by the judge, who said the videos lack "great import."

So booksellers and other distributors will find themselves guessing whether a particular book or magazine or video has enough value to keep them out of jail should some zealous prosecutor decide to charge them. This is a burden similar to the one that booksellers already bear when trying to decide what books or magazines might be legally obscene. But the Supreme Court's definition of obscenity provides safeguards that do not apply to depictions of animal cruelty -- a book must be considered as a whole and must be patently offensive to the average person applying community standards.

A bookseller's fear that he or she may be prosecuted for selling a legitimate work will apply with even more force with respect to books and magazines exhibiting harm to animals and could have an even more chilling effect. Ernest Hemingway's classic study of bullfighting, Death in the Afternoon, contains more than 80 pictures. The jacket of Garry Marvin's Bullfight (University of Illinois Press, 1994) shows a matador delivering a death blow. Although these books presumably have serious value, their legality is no longer guaranteed. What is a bookseller supposed to do about books and magazines about hunting? Without the time to examine every work in advance, there is a real danger that booksellers will stop buying them, depriving their customers of works that are protected by the First Amendment.

But the biggest problem with the law used to prosecute Stevens is that it could seriously undermine our nation's commitment to free speech. In its Supreme Court brief, the Obama administration has made the shocking claim that free speech can be limited to promote a "social interest in order and morality" and that the First Amendment only protects works with "serious social value."

We have heard this before. In the early 20th century, the U.S. government strictly limited the free speech rights of its citizens. People were sent to jail for criticizing America's participation in World War I because their words were likely to have a "bad tendency." Booksellers were imprisoned for selling literary classics like Lady Chatterley's Lover because many people thought they would encourage illicit sex, undermining the institution of marriage.

Beginning in the 1930s, however, the Supreme Court dramatically expanded the First Amendment, protecting all but a few categories of speech, e.g. libel, threats, obscenity, and child pornography. The Court recognized that under the First Amendment government must play no part in determining which ideas are good and what books have "serious value." Even material with no discernible social value is "as much entitled to the protection of free speech as the best literature," the Court has declared.

In U.S. v. Stevens, the government is inviting the Supreme Court to deny First Amendment protection to "low value" speech by "balancing the value of the speech against its societal costs."  If the Court accepts this view, Congress and the state legislatures will be free to censor a wide range of works that some people believe are harmful.

Bookstores contain many books and magazines that some people believe are harmful. In 1983, Catharine MacKinnon and Andrea Dworkin introduced a bill in Minneapolis that attempted to compensate women for the alleged harms of "pornography" by allowing them to sue booksellers for damages. Their arguments for the bill were very similar to those being made by the government in the Stevens case: whatever social value works depicting "the sexually explicit subordination of women" may possess is dwarfed by the damage they do to women, they said.

It is easy to see how a wide variety of other controversial speech could be targeted using the same logic. Legislators are itching to do something about the problem of violence in the media. Nearly a dozen laws have been passed -- and struck down -- that attempt to regulate violence in video games. Rap music is a sore spot for many people because of its frequent examples of violence and misogyny. Does hate speech, including flag burning, have serious value?

The Supreme Court will hear oral arguments in Stevens on October 6. If it endorses the government's dangerous idea that we should use a balancing test to determine "serious" speech, it will have tragically broken with the view that free speech is the core of our political system.

On Monday, July 27, the American Booksellers Foundation for Free Expression joined publishers, librarians, writers, and other media groups in filing an amicus brief in the case. (The brief is online.)

We cannot allow government to decide what speech has value. In a democracy, people must make that decision for themselves.