The Court and Free Speech

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When the Supreme Court ruled 8-to-1 this week that a federal law banning the sale of animal-cruelty videos violates the First Amendment, it reaffirmed the right to engage in even highly unpopular speech. And it wisely declined to create another category of expression outside of the First Amendment’s protection.

With this case and the court’s earlier Citizens United decision on corporate speech and political campaign contributions, this could be one of the most important terms in years for defining the constitutional scope of freedom of expression — for better or for worse.

Taken together, the rulings give freedom of speech a wide berth in two directions. The animal-cruelty ruling takes a strong and welcome stand that there should be only very narrow exceptions to the general rule that almost all content of speech is protected. That view is broadly accepted by most judges and constitutional scholars, and was reflected in the fact that eight justices from across the political spectrum joined the majority.

The campaign finance ruling, regrettably, gave a particular kind of speaker — corporations — a more expansive free speech right to spend than the court has ever acknowledged. The break there with the nation’s legal traditions was sharp, and opened the floodgates for big business and special-interest dollars to overwhelm American politics. That was delivered by a bitterly divided 5-to-4 court.

http://www.nytimes.com/2010/04/24/opinion/24sat1.html?th&emc=th