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New exceptions to First Amendment protections are unlikely

This article first appeared in the St. Louis Beacon, Oct. 8, 2009 - The two First Amendment cases that the U.S. Supreme Court heard during the first week of its regular term are unlikely to make major changes in the contours of free speech and religious freedom.

On Tuesday, the justices seemed disinclined to create the first new exception to free speech in the past 25 years. The government and animal rights advocates want the court to approve laws outlawing video depictions of cruelty to animals. But the justices buried the argument in hypotheticals suggesting the law was so broad that it would outlaw movies of bullfighting, hunting and of using geese to make foie gras.

Then, on Wednesday, a controversy about the Mojave Cross war memorial in California seemed to fizzle into insignificance as the justices suggested the most important issues weren't live.

That leaves the campaign finance case that the court heard early in September as the most likely one to make a big change in First Amendment doctrine. The court appears on the verge of recognizing broader free speech rights for corporations and blowing a hole in campaign finance laws.

It is striking that the Justice Department of the former constitutional law professor, President Barack Obama, is arguing in all three cases for a narrow, rather than a broad interpretation of the First Amendment. Liberal supporters of campaign finance reform and animal protection also argue for the narrower free speech protections.

The First Amendment says "Congress shall make no law," but the Supreme Court has recognized exceptions: Fighting words, threats, obscenity, child pornography, blackmail, libel, criminal conspiracies, untruthful advertising, advocacy of imminent lawless action - all of this speech can be punished. But the court has not created a new free speech exception in 25 years and didn't seem likely to make an exception to punish depictions of animal cruelty.

Congress passed the animal cruelty law to punish makers of kinky movies showing women in high heels crushing small animals. The law says it is a crime to make or sell "any visual or auditory depiction" of killing or seriously abusing a living animal, if the conduct violates a federal or state law. Instead of applying the law to pornography, prosecutors used it against a Virginia man who filmed pit bull fights.

Justice Antonin Scalia said there was no similarity between the treatment of animals and child pornography. Justice Ruth Bader Ginsburg also challenged the breadth of the government's argument. "What is the difference between ... bullfighting, cockfighting, dogfighting?" Ginsburg asked. "You say dogfighting is included, but bullfighting? And I don't know where you put cockfighting."

The Mojave Cross was erected 75 years ago to commemorate World War I veterans. When the courts ruled it was a violation of the separation between church and state, Congress ordered the land transferred to the Veterans of Foreign Wars so that it would be on private rather than public land. Congress designated it a national memorial, like Mount Rushmore and the Washington Monument. But courts said this still was a government attempt to promote the religious symbol.

Justice Scalia said it was "outrageous" to suggest that a cross did not commemorate Jewish and Muslim soldiers as well as Christians. But a lawyer challenging the cross said Jewish cemeteries did not contain crosses. The lawyer said that crosses could remain in Arlington Cemetery because the cemetery permits more than 30 other religious symbols.

The case lost most of its significance when the justices indicated they would not take up the issue of whether a former federal park officer had the legal standing to challenge the cross. If the court had made it harder for citizens to challenge religious displays, it could have closed the courthouse doors to many challenges to religious displays in town squares or buildings.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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