Free Speech Ain’t Free #$%*@
On Tuesday, October 7, 2009, lawyers for both sides argued before the United States Supreme Court whether Congress can outlaw videos showing dogs fighting or other small animals being tortured and killed. The law in question made it a crime to sell videos with scenes of animal cruelty, and was intended to apply only to illegal acts of torturing or killing animals, but not legal hunting or fishing.
Running, promoting, or participating in a dogfight is illegal in all 50 states. The most publicized criminal case of illegal dogfighting operations involved former Atlanta Falcons’ quarterback Michael Vick, who in August 2007 pled guilty to federal felony charges and was subsequently sentenced to prison for 23 months. Had Vick’s participation in the dogfighting activities been limited to taping the dogfights and selling DVDs or videotapes of them, he could have argued that the First Amendment to the United States Constitution—which, among other things, states that Congress shall make no law “abridging the freedom of speech”—barred his prosecution, as the defendants in the U.S. Supreme Court trial are contending.
The real issue raised by the case is this: Is speech really free in the United States? The First Amendment does not say you have the right to speak freely except upon certain issues. So if we look at it literally, the dogfighting films are protected by the First Amendment and therefore no criminal action can be taken against the persons involved in the filming, distributing, and selling of the tapes. Or can some speech be prohibited based on the argument that barring such speech is in the best interests of protecting society? Just because a DVD contains scenes of an actual crime taking place does not make it illegal. For instance, we often see on the nightly news videotapes of crimes, such as criminals robbing a convenience store. So it would appear that the argument that just because the DVD or videotape shows an actual illegal act (crime) being committed is not alone sufficient grounds to deprive it of free speech protection.
On the other hand, as Justice Samuel Alito asked during oral arguments, would it be okay to have a live, pay-per-view “Human Sacrifice Channel”? After all, although few people in the United States believe in human sacrifice, in some cultures and religions the sacrifice of a person—such as a 14-year-old virginal girl—is perfectly legal and in fact is mandated by their religious beliefs to appease the Gods. Should such sacrificial videos be banned in the United States, even if the person wishing to buy the video is a member of the religion that sanctions human sacrifice and believes he has the religious freedom, right, and obligation to view the film?
It is clear that some speech can be prohibited, despite the First Amendment’s unequivocal declaration. For instance, DVDs, Internet videos, pornographic magazines, and other media showing sexual conduct with minors can be and is prohibited. And it has long been the rule that the First Amendment does not protect obscenity. Of course, the definition of just what is obscene has changed over the years. The definition of what is obscene is so nebulous that it led one judge to say he couldn’t define obscenity, but he knew it when he saw it.
The truth of the matter is that, if speech were truly free in America, there would be no problem with selling or distributing dogfighting DVDs and videos, even though dogfighting itself is illegal in the United States. Should the government have the right to peer into the deep dark recesses of the primitive—if not perverted—human mind and say what a person is allowed to read, see, or hear, especially in the privacy of his or her own home? The fact is that we do not now have—nor have we ever had—completely free speech in the United States, which leads one to contemplate whether that is a good or bad thing.
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