The air was thick with hypotheticals at the Supreme Court last week as the justices considered whether a law designed to outlaw videos depicting cruelty to animals was constitutional. Because there is no floor to human decadence, so-called "crush videos" depicting women in high heels crushing small animals to death enjoyed a certain popularity. Congress outlawed them. Most of the justices appeared to think that the law ran afoul of the First Amendment and they let fly with a quiver full of theoreticals. "What if I'm an aficionado of bullfighting who wants to promote his passion about the noble fight of man versus beast by selling videos?" Justice Scalia asked. Later, mocking the "bona fide scientific, journalistic, educational, or historical" exceptions to the law, he added, "If I dress up like a Roman to promote my videos, does the whole thing fall under the historical exception?" Justice Stevens asked whether depictions of hunting with a bow and arrow might fall within the purview of the law.
In a direct riposte to Justice Scalia's suggestion that under the First Amendment, "people who like bull fighting, who like dog fighting, who like cock fighting" should be able "to present their side of the debate," Justice Alito proposed a hypothetical of his own. "What about people who -- who like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel. They have a point of view they want to express. That's OK?"
All of this lively discussion at the Supreme Court on the reach of the First Amendment is grand stuff -- just what the justices ought to be puzzling over. The right to freedom of speech is fundamental to our constitutional order. It serves to safeguard our other liberties. And it defines who we are as a people.
Except -- hello? -- the Supreme Court has upheld direct (not speculative), blatant, and sweeping restrictions on that most sacred of all speech in a democracy -- political speech. By upholding the constitutionality of the McCain/Feingold law, the Supreme Court in 2003 (with a slightly different composition from today's Court) joined Congress and President Bush in imposing strict limits on who can legally say "vote for" or "vote against" this or that candidate within 30 days of a primary or 60 days of a general election.