Thursday, April 22, 2010

When The Court, Not The Law, Is An Ass

The 8-1 Supreme Court ruling striking down a federal law that made it a crime to create or sell dogfight videos and other animal cruelty depictions such as "crush" videos provoked a number of reactions in me that did not dissipate after a night's sleep. Those reactions can be grouped under the headings of disgust and confusion.

Disgust because dog fighting is so utterly barbaric, but then ours is a society in which a majority of people approve of Bush era unpleasantries like waterboarding. Confusion because dog fighting is illegal in all 50 states but videotaping such crimes is an expression of speech that should be protected, or so says the high court.

In writing for the majority in U.S. v. Stevens, Chief Justice Roberts sewed further confusion in declaring that a 1999 law banning dog fighting videos had created
"a criminal prohibition of alarming breadth" and that the government's aggressive defense of the law was "startling and dangerous." Justice Alito was the lone dissenter, correctly noting that dog fighting crimes are committed "for the sole purpose of creating the videos."

Where my disgust and confusion merge is over the court's 1982 precedent putting child pornography outside the First Amendment, joining libel and incitement to riot, because depictions of such filth were necessarily linked to the actual abuse of children.

Does this mean that children are accorded a protection that dogs are not?

The majority in Stevens sidesteps that question by stating that the law cannot be enforced because of its "overbreadth," a contention that the holdout Alito parries effectively in writing that it is obvious that Congress never intended legal activities involving animals like hunting to be banned.

His commonsensical solution was to amend the law by including hunting in an exceptions clause that would allow the law to pass constitutional muster by the majority's standard.

"If the law supposes that," Charles Dickens' Mr. Bumble famously remarked in Oliver Twist, "the law is an ass -- an idiot." But in this instance it is a court hung up on hypotheticals and not the impact of its actions that is an ass.

As Alito noted, the 1999 law destroyed the crush video industry only to have that depraved form of entertainment revive after a federal appeals court struck it down en route to the Supreme Court, which has now validated that shortsighted decision.

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