October 6, 2009

WASHINGTON (AP) - Supreme Court justices, skeptical of a law
aimed at graphic animal cruelty videos, touched Tuesday on dog
fights, bull fights, cock fights, bow-and-arrow hunting, even a
hypothetical television channel devoted to human sacrifice. Oh,
yes, and freedom of speech.

The court weighed arguments over a 10-year-old law that bans the
production and sale of the videos. A federal appeals court struck
down the law and invalidated the conviction of Robert Stevens of
Pittsville, Va., who was sentenced to three years in prison for
videos he made about pit bull fights.

In the end, the justices appeared inclined to agree that the law
is too broad and could, in some instances, apply to videos about
hunting.

"Why not do a simpler thing?" Justice Stephen Breyer asked an
administration lawyer. "Ask Congress to write a statute that actually aims at the frightful things they were trying to prohibit."

But the lawyer, Deputy Solicitor General Neal Katyal, said Congress was careful to exempt hunting, educational, journalistic
and other depictions from the law. Katyal urged the justices not to
wipe away the law in its entirety, but to allow courts to decide on
a case-by-case basis whether videos are prohibited.

When Congress passed the law and President Bill Clinton signed
it in 1999, lawmakers were especially interested in limiting Internet sales of so-called crush videos, which appeal to a certain
sexual fetish by showing women crushing to death small animals with
their bare feet or high-heeled shoes.

The government said the crush videos virtually disappeared after
the law took effect. Only three people have been prosecuted under
the law and none relating to crush videos. Animal cruelty and dog
fighting are illegal throughout the country.

Justice Samuel Alito sounded the most receptive to the government's argument. Alito wondered whether the court should
focus on the potential prosecution of hunters or, citing a Breyer
example, someone who produces foie gras from a goose. "Or do we
look at what's happening in the real world?" he asked Stevens'
lawyer, Patricia Millett.

Millett said Congress has to be very careful when restricting speech and must use a "scalpel, not a buzz saw."

It was Alito who asked about the human sacrifice channel, while
Justice Anthony Kennedy chimed in with a scenario involving the
airing of live pit bull fights in movie theaters, with a $10 charge
for tickets.

The questions were intended to test the limits of First Amendment freedoms - and the right of Congress to intervene - in
matters that most people would find offensive.

Justice Antonin Scalia was having none of it. In the area of free speech, Scalia said, "it's not up to the government to decide what are people's worst instincts."

Scalia also pointed out that opponents of animal fighting may
feel more free to use the images to express their views than
proponents. "People who like bull fighting, who like dog fighting,
who like cock fighting ... that side of the debate is entitled to
make its point as forcefully as possible," he said.

Stevens noted in court papers that his sentence was 14 months
longer than professional football player Michael Vick's prison term
for running a dogfighting ring.

Animal rights groups, including the Humane Society of the United
States and the American Society for the Prevention of Cruelty to
Animals, and 26 states have joined the administration in support of
the law. The government says videos showing animal cruelty should
be treated like child pornography, not entitled to constitutional
protection.

Stevens says he also opposes animal cruelty, including dog
fighting. But he argues that the government should not be able to
jail someone for making films that are not obscene, inflammatory or
untruthful.

A decision is expected by the spring.

The case is U.S. v. Stevens, 08-769.