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A decision handed down this week by the United States Supreme Court in United States v Stevens shows the rather different approach taken there that would be likely to be taken here in questions of freedom of expression at the extreme.  The case concerned whether a federal law which prohibited depictions of animal cruelty was unconstitutional having regard to the First Amendment of the US Constitution.

SCOTUS blog summarises the background:

“The law had been challenged by Robert J. Stevens, a Pittsville, VA, author and producer of documentary films.  He specializes in promoting the popularity of the Pit Bull breed of dogs.  His business, named “Dogs of Velvet and Steel,” sells information and dog-handling equipment about his favorite breed.  Undercover federal agents had bought from him copies of films, including one made in Japan documenting modern-day dog fights in that country and in the U.S., showing considerable cruelty.  Stevens’ had claimed that the aim of his publications was to provide historical perspective on dog fighting. On the basis of that film and other materials found in Stevens’ home, he was charged with and convicted of violating the 1999 law, and was sentenced to 37 months in prison.  A federal judge rejected his First Amendment challenge to the law, but the en banc Third Circuit Court struck it down. “

The Supreme Court upheld that decision 8-1 (Alito dissenting) holding that the law in question went too far.  In particular, the Court rejected the notion that the test in respect of restricting speech was a simple balancing test of the value of the speech against its societal costs.  In fact, the First Amendment had already tilted that balance strongly in favour of free speech, Chief Justice Robert stating in the option that

“our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Such an approach is unlikely to be adopted here.  Freedom of expression in such material could only really be safeguarded at law by reference to Article 10 of the Human Convention on Human Rights.  However, the European Court has not in the past been ready to protect pornography or unusual sexual behavior either under Article 10 or Article 8.  This suggests that our Supreme Court would be unlikely to take the same approach if it had to determine the legitimacy of similar material under the Convention, even if its recent decision on the sex offenders’ register suggested a somewhat more interventionist approach in issues relating to sexual matters.

Scotusblog rounds up the US reaction here.   Michael Tomasky at The Guardian blogs here.