Stone: Why the Supreme Court's Decision in Stevens is Correct
In United States v. Stevens, the Supreme Court, in an eight-to-one decision, held unconstitutional a federal law that prohibited any person to disseminate videos of dog-fighting or other acts of animal abuse. The decision surprised many people, who thought that such videos have nothing to do with the First Amendment. More specifically, many people thought that because the Court has held that government can constitutionally ban images of child sexual abuse it should also be able to ban images of animal abuse. In an opinion by Chief Justice Roberts, the Court rightly rejected this analogy, but the reasoning isn't self-evident, so I want to explain.
To begin with, it's important to understand that a basic principle of First Amendment doctrine is that an individual ordinarily does not have a constitutional right to do an act that is otherwise unlawful merely because he wants to engage in free expression. For example, an individual does not have a First Amendment right to speed on I-94 because he wants to make a movie involving speeding; he does not have a First Amendment right to steal a camera in order to make a video; and he does not have a First Amendment right to wiretap a telephone conversation in order to prove that a congressman has taken a bribe.
It is for this reason that Daniel Ellsberg, who stole the Pentagon Papers, could have been prosecuted for the theft. Similarly, this is why a person who wants to sexually abuse a child in order to make a movie about child sexual abuse has no First Amendment right to do so, and why an individual who wants to make a movie about dog-fighting has no First Amendment right to conduct an otherwise illegal dog-fight.