Monday, April 26, 2010

Tushnet on the Animal Porn Decision
Mike Rappaport

I don't get to say this often but I agree with Mark Tushnet's criticism of Chief Justice Robert's decision for the Court in the Stevens (animal porn) case.  Tushnet writes:

Chief Justice Roberts's effort to distinguish the Court's creation of a new exception to First Amendment coverage is transparently circular.  The test for new exceptions is apparently historical, except when it isn't, in which case the test involves precisely the kind of balancing the Chief Justice says is "startling and dangerous."

https://rightcoast.typepad.com/rightcoast/2010/04/tushnet-on-the-animal-porn-decisionmike-rappaportbr.html

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Comments

It is sometimes helpful in evaluating a holding to actually read the opinions. Chief Justice Roberts, in finding the statute facially unconstitutional adopted the hunting arguement advnced by the amicus National Rifle Association, which he graciously cited.

The way the statute had been written banned depictions of the killing and wounding of animals which would be illegal where the depiction is shown. The problem is that lawful hunting , which is depicted a great deal, the way NASCAR driving is depected a great deal, involves a lot of killing and wounding of animals in ways and under circumstances which are legal in some places and not in others. For example, Mourning doves are legal game in most states, but completely protected in a few. Broadcasting the lawful shooting of Doves in Pennsylvania on television in New Jersey, where doves are protected, violates the Act, which is why it is facially unconstitutional.

First Citizens United, and now Stevens. It is gratifying to be part of the country's oldest civil rights organization and to be on the cutting edge of the First Amendment.

t4he nDepiction of kiling and wounding doves

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