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Speaker 1: What has the potential to be, I think, a very, very important first amendment
case called United States versus Stevens. Stevens was a successful challenge below to
a federal law that makes it a crime to depict animal cruelty or to send pictures of animal
cruelty through interstate commerce. There is no issue in the case about the government's
right to prohibit animal cruelty. It's just a case about photos, about the breadth of
the definition of animal cruelty and about the scope of the statute may cover. The lower
court in this case held, I think, properly that this was an exceedingly broad statute
that could not meet first amendment standards and therefore struck it down.
But again to me almost more interesting than the case itself is the brief that the solicitor
general submitted in the case. It is a very, very broad and, in some ways, troubling view
of the government's ability to regulate speech. There are two propositions in the solicitor
general's brief in particular that I think would be quite troubling if they were to be
adapted by the court. The government argues that the speech ought
to be excluded entirely from first amendment and protection and it reaches that conclusion
by deciding whether speech is inside or outside the first amendment, requires, and here I'm
quoting, "a categorical balancing of the value of the speech against its societal costs",
allowing the government or the courts to make a priori decisions about the value of speech
and then assign first amendment protection or not depending upon whether the government
finds a speech is valuable, I think, is an approach that is very hostile and inconsistent
to traditional first amendment values. The other thing that the government says in
its brief and argued below unsuccessfully is that the statute is safe because it has
an exception for depictions that have serious value outside of the obscenity context. We
have never allowed first amendment protection to depend upon a court or a legislature's
assessment of what speech has serious value and what speech does not. We live that judgment
to the market place of ideas in our first amendment system. So even though it involves
a somewhat obscure federal statute, it has now called into question very large principles
under the first amendment.