The decision handed down last week by the United States Supreme Court in United States v Stevens shows the radically different approach taken in the United States in relation questions of “extreme” and “offensive” freedom of expression.  The case concerned whether a federal law which prohibited depictions of animal cruelty was unconstitutional having regard to the First Amendment to the US Constitution.

ScotUSblog summarises the background:

“The law had been challenged by Robert J. Stevens, a Pittsville, VA, author and producer of documentary films.  He specializes in promoting the popularity of the Pit Bull breed of dogs.  His business, named “Dogs of Velvet and Steel,” sells information and dog-handling equipment about his favorite breed.  Undercover federal agents had bought from him copies of films, including one made in Japan documenting modern-day dog fights in that country and in the U.S., showing considerable cruelty.  Stevens’ had claimed that the aim of his publications was to provide historical perspective on dog fighting. On the basis of that film and other materials found in Stevens’ home, he was charged with and convicted of violating the 1999 law, and was sentenced to 37 months in prison.  A federal judge rejected his First Amendment challenge to the law, but the en banc Third Circuit Court struck it down. “

The Supreme Court upheld that decision 8-1 (Alito dissenting) holding that the law in question went too far.  In particular, the Court rejected the notion that the test in respect of restricting speech was a simple balancing test of the value of the speech against its societal costs.  In fact, the First Amendment had already tilted that balance strongly inf avour of free speech, Chief Justice Robert stating in the option that

“our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

The powerful dissent of Justice Alito (including an Appendix summarising the animal cruelty laws in each state) is also worth reading.  He described the majority’s analysis as being built on “fanciful hypotheticals” and that it would serve to protect “depraved entertainment.”  The New York Times in an interesting and useful discussion of the case points out that Chief Justice Roberts and Justice Alito are the same side 92% of the time (more than any other pair of justices).

All the background documents relating to this case can, as usual, be found on the ScotUSWiki site.  These include 20 amicus briefs – 8 supporting the petitioner and 12 supporting the respondent.

In a blogpost on “Concurring Opinions” Neil Richards commends the decision and concludes

“that outside the area of campaign finance law, the Roberts Court sees itself as continuing the tradition of broad protection for speech, even speech that contains offensive or disturbing ideas, images, or information”

The respondents were strongly supported by various media and First Amendment organisations and the US coverage has been very supportive of the decision.  Scotusblog rounds up the US reaction here.   Michael Tomasky at The Guardian blogs here.

It is interesting to consider how the English Courts (or the Court of Human Rights) might approach such a law.  Such an approach is unlikely to be adopted here.  Freedom of expression in such material could only really be safeguarded at law by reference to Article 10 of the Human Convention on Human Rights.  However, the Court of Human Rights has been very cautious in relation to the Article 10 protection of extreme and offensive speech – refusing to protect, for example, allegedly blasphemous erotic videos (Wingrove v United Kingdom ) or the display of a work of art made from freeze dried human foetuses (S and G v United Kingdom).  Overall, it seems highly unlikely that an Article 10 attack on legislation preventing the depiction of animal cruelty would succeed in England or in Strasbourg.

Dan Tench,  Olswang LLP

An earlier version of this post appeared on the UKSC Blog and is reproduced with permission and thanks.