A federal law criminalizing the sale of videos depicting animal cruelty seems in constitutional peril, after Supreme Court oral arguments today.
In arguments in U.S. v. Stevens, a challenge to a law that makes it illegal to create or sell depictions of animal cruelty, most of the justices seemed to indicate that the statute cuts too broad an encroachment on the First Amendment.
For example, some justices were not at all moved by deputy Solicitor General Neal Katyal’s argument that the law – passed in an effort to ban so-called “crush videos” depicting women crushing small animals to death with their stilettos, dominatrix-style – could not be applied to hunting videos.
“Some depictions of hunting are pretty gruesome,” said Justice Anthony Kennedy.
“Or ‘killed!’” Scalia exclaimed. “How do you limit ‘killed?’ …‘Kill’ has one meaning, which is ‘kill!’ … You don’t have a single case in which an absolutely clear word like ‘kill’ is given a more narrow meaning because of other words that are different from that word.”
Of course that didn’t mean that Patricia Millett, the attorney arguing against the statute, didn’t get some memorable questions.
When Millett pointed out that the underlying dog fighting in the video at issue in the case wasn’t illegal because it took place in another country where it was allowed, Justice Samuel Alito asked: “What if [people] like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay-per-view, on The Human Sacrifice Channel. Is that ok?”
As people in the courtroom laughed, Millett tired to qualify her answer by saying Congress must act in an “even-handed” way. Alito had more questions.
“Suppose you have The Ethnic Cleansing Channel on cable TV, and [said ethnic cleansing] is taking place in a country that’s beyond our power to influence. Congress couldn’t prohibit that?”
“The fact that conduct is repulsive or offensive does not mean we automatically ban the speech,” Millett answered.