I know I shouldn’t be surprised, but the rationale espoused by Justice Scalia during oral arguments yesterday flabbergasted me. The case before the United States Supreme Court involved a federal appeals court ruling, which citing freedom of speech, struck down a law against the sale of videos with scenes of animal cruelty. The Obama administration sought to reinstate a 10-year-old federal law that banned the production and sale of videos that show torture, mutilation and death of animals.
According to the Los Angeles Times:
The law applied only to illegal acts of torturing or killing animals, not legal hunting or fishing. It was intended to dry up the underground market in so-called crush videos, which show squealing animals being stomped by women in high heels. More recently, it has been used to prosecute people who sell videos of pit bulls and other dogs fighting.
On Tuesday, most of the justices sounded wary of reviving the law, fearing it might be used to ban depictions of legal activities such as hunting.
Justice Antonin Scalia, an avid hunter, insisted the 1st Amendment does not allow the government to limit speech and expression, unless it involves sex or obscenity.
Here is the exchange that that boggles my mind:
Chief Justice John G. Roberts Jr. took up the cause: “Can Congress ban the human sacrifice channel or not?”
Scalia had his own answer. “It’s not up to the government to tell us what our worst instincts are,” he said.
So in Justice Scalia’s universe, the government cannot restrict broadcasters from showing snuff films, women in high heels crushing animals to death or having a human sacrifice channel because the First Amendment is absolute. This the same Scalia who dissented in the Oregon physician-assisted suicide case where he opined that federal officials have the power to regulate the doling out of medicine. According to Scalia in Gonzales v. Oregon “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.
Perhaps Scalia was merely being hyperbolic in order to highlight some logical flaw in an argument that was being presented. However, given past opinions, it seems as if Scalia’s moral compass is completely out of whack. If Scalia has his way, we might soon be seeing gladiators fighting to death on a pay per view channel near you – just as long as they do not utter any obscenity or show too much skin.
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