Not long ago — in April to be exact — the Supreme Court ruled eight to one that Americans had the right to sell what are known as “crush videos”: films depicting particularly despicable forms of cruelty to animals. It was a simple matter of free speech, said the majority, and just because some Americans (likely most Americans) were horrified by footage of women in spiked heels impaling small animals was no reason to outlaw this very particular form of entertainment.
The solicitor general’s office, headed by the industrious Elena Kagan, was happy to assure the justices that, hey, the US government would never try to ban most kinds of offensive communication: it was just cruelty the government wished to outlaw, specifically the intentional maiming, torturing, or killing of “a living animal.”
Here’s what an incensed Chief Justice John Roberts had to say at the time as he swatted away that argument:
“Not to worry, the government says,” sneered Roberts. “But the First Amendment protects against the government … It does not leave us at the mercy of noblesse oblige.” In fact, Roberts added, Kagan’s argument were “startling and dangerous.”
That, of course, was then.
Fast-forward to this past week: Chief Justice Roberts, it now appears, has in the span of just two months acquired infinitely greater faith in the government’s ability to determine the limits of free speech, as does most of the high court. No longer does the First Amendment protect against the government. That part of the Constitution, Roberts recently discovered, is simply an annoying splinter which can be removed at will by the state. It turns out that if you decide, say, to teach peaceful modes of conflict resolution to a group — any foreign group for which the US government has no use and labels terrorist, then you can be found guilty of giving what the all-purpose Patriot Act calls “material support” to that organization.
Peaceful conflict resolution is exactly what Ralph D. Fertig, a longtime civil rights lawyer, wanted to teach the Kurdistan Workers’ Party (aka the PKK) for the last 12 years. He was not about to supply the groups with arms or money, he explained. He was merely hopeful of giving their members a different form of speech: ours. And a different way of producing change: advocacy before the United Nations.
However, the hyperactive Elena Kagan found even these time-tested ambitions fraught with peril. “Expert advice or assistance” and “service” are specifically prohibited by the Patriot Act, she pointed out, along with more material forms of help such as gun-running. In other words, everything we treasure in the United States — free speech, the right to express opinions, judgments and tastes, however offensive — are not available for export. The First Amendment stops at Dulles Airport.
Those of us who marvel that the killing and torturing of pets by high-heeled babes in videos is protected speech, but the teaching of peaceful conflict resolution to those who are badly in need of such lessons is a threat to our national security clearly have a lot to learn. Since Kagan is unlikely to alter her views once she joins Roberts and company on the high court, perhaps Fertig should consider changing his choice of exports. There’s a lesson here, apparently. Dead dogs, okay. Live people, not okay.