You state "despite an American tradition of prohibiting animal cruelty that predates the Constitution itself, there was no comparable history of outlawing depictions of animal cruelty and presumptive exemption was therefore improper". This implies that the court is creating an "if-then" kind of rule --> if there is no longstanding tradition of prohibition, then presumptive exemption is improper. When reading the case, it didn't appear that way to me.

The court stated that because §48 explicitly regulates expression based on content, it is “ ‘presumptively invalid,’ . . . and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817. The government offered a series of reasons why it believes the law shouldn't be invalidated, but failed to satisfy its burden. The court discussed historical regulations banning animal cruelty, which the court distinguished from a ban on "depictions" of animal cruelty. The court went on to reject other reasons offered by the government such as the depictions of animal cruelty failing to satisfy some sort of social cost balancing test, a test which the court rejected outright.

It appears that the government simply failed to meet its burden. It does not appear that the court ruled that because no tradition of prohibition for depiction exists, it must be that there is no presumptive exemption from first amendment protection. It appears that this was simply one reason weighing in favor of not presumptively exempting the depictions. Whether or not there is a tradition of prohibition is a relevant factor, not a determinative one. If it was determinative, the court would not need to continue by addressing the government's arguments about social cost balancing, etc. Historical regulation of the content at issue is a factor that strengthens the argument that there is an exemption, not a determinative prerequisite and will be used as a distinguishing factor in later cases. Thus, it doesn't appear how the court "implicitly froze" the categories of exemptions to those already recognized under supreme court precedent, and doesn't appear to "soup-up" first amendment protection.

-- AustinKlar - 01 Jan 2012