Two really quick comments, this law is being passed in response to the supreme court striking down another law that banned this 8-1. Only Scalia supported the law, and Scalia even used the same argument you did, the law was good because it protected small animals. Knowing your opinion of Scalia, you may wish to rethink your position, because your reasoning sounds a lot like his in the court opinion.
Second, the law really does raise first amendment concerns because it limits a form of "speech." The first amendment is very broad to protect many forms of speech, because it would be toothless if it only protected speech that the government deemed worthy of protection. The side effect of the 1st is that it must protect speech we do not like, and this issue dives right into those waters of "can we ban a form of speech because we don't like it?"
Daishi, first I'll note, your response did not respond to most of my points, but made its own, which is fine.
On your points, you probably do not appreciate the contempt I have for Scalia, even while I recognize some of his views are sincere but misguided, but you also don't understand my opinion - if Scalaia takes the right side of an issue and a favorite Justice of my the wrong side, 'good for Scalia, he's right' he's my response. My opinion is based on what's right, not who wrote it, any my contempt for Scalia is based on his being wrong so much (in both senses of the word much, degree and volume).
I might rethink an issue if he agrees because his principles are so different and it raises questions, but if he's right, he's right, and that's good.
If you have a link to the opinion you mention, it'd be interesting to see. Maybe I'll get to post my first compliment for Scalia I can recall.
Admittedly, these are tough lines to draw and come down to opinion more than anything. They're not the first tough issues - for example, the (Warren) court stood strong for free speech when it ruled against 'prior restraint', which IMO is a far more important free speech issue, and the stakes were higher - if the government knows someone is about to publish info it considers harmful to national security in a time of war, can it prevent the publication rather than just punish it if it was illegal after the fact?
'Protect the children' is one of the most potent weapons in the arsenal of the people who would deny free speech, and it takes a court with some backbone to say 'tough luck'.
'Protect the nation' is another of the biggest weapons in that arsenal, and it needs the same for the court to say 'tough luck' to the government and public opinion that might think the court is filled with traitors who will cause the overthrow of the country (with the help of some opportunistic commentators, whether William Randolph Hearst or Fox).
There definitely are two sides to this to consider hard - 'protect the X' is not a backdoor loophole to gut free speech. If it were, every person who argues against a war could be painted as a 'threat to the men and women who serve if not the nation itself' for their views, as happens too much already.
And we are treading very close to the same issues in obscenity law. We had a period where 'nudist documentary films' were ok, because they skirted a definition of product being made for 'prurient interest', just as we now try to debate the difference between 'documentaries' for public policy on animal cruelty and those which serve an audience who enjoy sadism. (What's to stop someone from making a tongue in cheek 'documentary against animal cruelty' that's really aimed at meeting the prurient interests, just as the 'nudist colony' films did - who knew there were so many public policy and education issues in seeing those camps?)
You frame the question about 'speech we don't like' - we'd probably agree that's on the protected side, but we do have the right to oppose some behaviors we don't like, that hurt animals or children or even consensual adults (would we let someone be blinded for pay, or recognize it as an inherently problematic act, for instance?) - and there comes a balancing act in media depicting such behaviors.
I've felt for a while that *drawings* catering to pedophiles or sadists seem like protected speech - even faked films - as distasteful (or worse) as they are to most citizens.
That raises another topic, where the people for censoring these try to link them to an increase in the actions of the market - to make a link justifying censorship.
This is a 'gray area'. If I put out a movie where consistently, 10% of the people who saw it committed a murder within a week because they saw it, we would almost certainly say we had a public danger justifying censorship, scree free speech. these gray links between trying to tie media and behavior are the same idea, less clear. Does pornography 'cause' some rapes? Almost for sure. How do you separate the predisposition from the film? Do the films prevent some rapes? Almost for sure. Gray area.
For all our talk of free speech, there has long been a lot of mob rule - you could go to jail for having sex photos for most of the time there have been sex photos. Mae West was a national scandal who helped cause the government to censor the movie industry for merely suggestive language. The mob has ruled.
We now arguably have the freest speech we've ever had (largely thanks to liberals, to get the plug in), even when in ways, we have some increasing restrictions (such as 'freedom zones' blocks from political events to prevent annoying protestors, and the public making bad use of its freedoms as propagandists like Fox thrive).
This isn't an easy issue, but I'd like to find room for preventing the distribution of media that really does cause the cruelty to animals with a market on the side of 'ok to ban'.
That is not based on 'disagreeing' with it or just 'oh my gosh the cute animals' emotional appeal, but on balancing the issues and treasuring our free speech rights.
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