Here are some of my instant reactions to the opinion in United States v. Stevens.

Chief Justice Roberts wrote for 8 Justices, and Justice Alito dissented. From the September sitting, more likely than not, Justice Kennedy or Justice Stevens or Justice Alito will be assigned a major opinion. A friend who is in the know informed me that Justice Alito is the only Justice with a pet dog. Coincidence? Probably not 😉

In short, the Court found that Congress cannot ban the mere portrayal of animal cruelty. Any such law is substantially overbroad, and conflicts with the First Amendment.

Congress enacted 18 U. S. C. §48 to criminalize thecommercial creation, sale, or possession of certain depic-tions of animal cruelty. The statute does not address underlying acts harmful to animals, but only portrayals of such conduct. The question presented is whether the prohibition in the statute is consistent with the freedom ofspeech guaranteed by the First Amendment.

The government argued that depictions of animal cruelty, as a class, are unprotected. The Court did not agree. Restrictions on free speech have been quite limited, and do not extend to depictions of animal cruelty.

In a section that may make Justice Breyer cringe, the Court rejected a balancing test approach to free speech.

The Government thus proposesthat a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection dependsupon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage,that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balanc-ing of relative social costs and benefits. The First Amendment itself reflects a judgment by the Americanpeople that the benefits of its restrictions on the Govern-ment outweigh the costs. Our Constitution forecloses anyattempt to revise that judgment simply on the basis thatsome speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

The Government thus proposesthat a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection dependsupon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.As a free-floating test for First Amendment coverage,that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balanc-ing of relative social costs and benefits. The First Amendment itself reflects a judgment by the Americanpeople that the benefits of its restrictions on the Govern-ment outweigh the costs. Our Constitution forecloses anyattempt to revise that judgment simply on the basis thatsome speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

Hmm… I wonder if any other provisions in the Bill of Rights can get such protection. You know, maybe that amendment that comes after the First Amendment, and before the Third Amendment? Just saying.

The Court was very clear that they limit the cases where unprotected categories of speech should be recognized.

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amend-ment. Maybe there are some categories of speech that have been historically unprotected, but have not yet beenspecifically identified or discussed as such in our case law.But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject theGovernment’s highly manipulable balancing test as a means of identifying them.

One point stressed in the opinion, and during oral arguments of both Citizens United and Stevens by the Chief, is that the Court will not take the government’s word for it when it says it will enforce an unconstitutional law constitutionally. Roberts nailed Kagan on this during arguments in Citizens United, when she said that the government would not regulate books. Roberts reiterated this theme in Stevens.

Not to worry, the Government says: The ExecutiveBranch construes §48 to reach only “extreme” cruelty,Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6– 7. The Government hits this theme hard, invoking itsprosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitu-tional statute merely because the Government promised touse it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).

In dissent, Justice Alito noted that the record was insufficient for the Court to consider an overbreadth challenge, which is a strong remedy, and he would remand to the lower court.

Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Ap-peals on remand to decide whether the videos that respon-dent sold are constitutionally protected. If the question of overbreadth is to be decided, however, I do not think the present record supports the Court’s conclusion that §48bans a substantial quantity of protected speech.

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In sum, we have a duty to interpret §48 so as to avoid serious constitutional concerns, and §48 may reasonably be construed not to reach almost all, if not all, of the depic-tions that the Court finds constitutionally protected. Thus, §48 does not appear to have a large number of un-constitutional applications. Invalidation for overbreadth is appropriate only if the challenged statute suffers from substantial overbreadth—judged not just in absoluteterms, but in relation to the statute’s “plainly legitimate sweep.” Williams, 553 U. S., at 292. As I explain in the following Part, §48 has a substantial core of constitution-ally permissible applications.

There are also significant discussions about hunting, and a cite to several NRA-type amici.