CDT and the ACLU have joined a "friend of the court" brief
filed in the Supreme Court by the DKT Liberty Project in what is a very ugly case. As the adage goes, "bad cases make bad law," and this is especially true in First Amendment cases involving unseemly (or worse) speech. There is a great risk that this case - U.S. v. Stevens -- will yield some very bad law.
Stevens was convicted and sentenced to prison for distributing over the Internet videos depicting cruelty to animals. The videos including depictions, for example, of dog fights in Japan (where, as it happens, such activities are legal). Dog fights and other acts of cruelty to animals are (and should be) illegal in all fifty states, but this case raises the question of whether depictions of such dogfights should be wholly unprotected by the First Amendment.
Although the videos in the case were distributed online, there aren't really Internet-specific issues in the case. CDT joined this brief not because of any Internet angle, but because of two broader, and extremely troublesome, arguments that the Obama Administration's Department of Justice has made to the Supreme Court. CDT's brief specifically focuses on the two arguments:
First, DOJ urges the court to create a new category of speech that is outside of First Amendment protection (depictions of animal cruelty). In the history of the First Amendment, the Supreme Court has declared only a very few types of speech - such as obscenity, child pornography, defamation, and fighting words - as unprotected by the Constitution. First Amendment advocates get nervous at the idea that more and more categories of speech should be totally excluded from constitutional protection.