Justices defend free speech in animal abuse case

WASHINGTON — The Supreme Court appeared ready Tuesday to strike down a federal law that makes it a crime to sell depictions of animal cruelty on the grounds that it sweeps too broadly and violates free speech rights.

In a spirited hour marked by outrageous hypothetical questions, most of the justices made clear that they thought the disputed statute — used to prosecute a Virginia man who made dog-fighting videos — was too vaguely written.

Justice Antonin Scalia questioned whether the law would cover videos about Spanish bull-fighting. Justice John Paul Stevens asked about images of animals hunted with bow and arrow. Samuel Alito went beyond the animal context to ask whether Congress could target the "human sacrifice (TV) channel" or videos of Roman gladiators fighting to the death.

At the core of the case is the latitude Congress has to outlaw images of vile or abhorrent conduct, not the conduct itself. The consensus among the justices seemed to be that the animal-cruelty law breaches First Amendment speech protection, as a lower federal appeals court had ruled.

The 1999 statute stemmed largely from congressional worries about "crush" videos, which typically depict women pounding their high heels on small animals for prurient appeal. Yet the law was crafted to cover depictions of animal cruelty beyond "crush" videos and unlawful dog fighting. There are exceptions for images having educational, political, historical or other social value.

Some of the justices, including Anthony Kennedy and Stephen Breyer, suggested that Congress might be able to write a narrower law that targeted only "crush" videos.

In the prosecution before the court, Robert Stevens was convicted based on three videos of pit bull fighting he advertised for sale. (Dog fighting is illegal nationwide.) Stevens argued that the videos were of historical and educative value. A jury disagreed and convicted him of three counts of knowingly selling depictions of animal cruelty. He was sentenced to 37 months in prison, but has not served time because of the successful appeal.

The U.S. Court of Appeals for the 3rd Circuit, whose decision was before the justices Tuesday, rejected the Justice Department's effort to equate pictures of animal cruelty with images of obscenity and child pornography, which can be banned without violating the First Amendment.

"Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm," the Philadelphia-based appeals court wrote. The 3rd Circuit emphasized that while "acts of animal cruelty… are reprehensible," Congress cannot regulate depictions of those acts without First Amendment implications.

Appealing that decision Tuesday, Deputy Solicitor General Neal Katyal stressed that allowing videos of dog fighting and other animal cruelty drives the market for such images and increases the chances that more animals will be tortured.

Chief Justice John Roberts suggested by his questions that federal prosecutors might squelch valid images. "How can you tell that these aren't political videos?" he asked.

Justice Stephen Breyer said it seemed difficult for people to know what kinds of pictures are exempt from the law and which are covered.

Representing Robert Stevens, lawyer Patricia Millett argued that not only did the law violate speech rights but that it had not achieved its goal of drying up the market. She told the justices that even if every dog fighting video were discarded, illegal dog fighting would continue.