Videos of Small Animals Being Crushed by Women in High Heels Are Protected Free Speech?

This week the Supreme Court handed down an eight to one ruling that, depending on your priorities, either reflects its total, unwavering belief in the primacy of the First Amendment, or else proves once and for all that the justices have no soul -- except for maybe Samuel Alito.

The case: U.S. v. Stevens (pdf). The plaintiff: Virginia resident Robert Stevens, jailed for selling dogfighting videos. The law: 1999 federal legislation punishing anyone who "knowingly creates, sells or possesses a depiction of animal cruelty" for profit.

The original motivation for the law was to prevent a brand of pornography known as "crush videos."

"Crush videos," the Court explains, echoing the argument brought forth by U.S. Solicitor General Elena Kagan (who is on Obama's shortlist to replace Justice Stevens) "often depict women slowly crushing animals to death 'with their bare feet or while wearing high heeled shoes,' sometimes while 'talking to the animals in a kind of dominatrix patter' over '[t]he cries and squeals of the animals, obviously in great pain.' Apparently these depictions 'appeal to persons with a very specific sexual fetish.'"

Sickening, yes, but according to the Court, sickening is besides the point. This week, the justices agreed, almost unanimously, that the government's attempt to stamp out such vile acts 10 years ago was an example of legislative overreach. However well-intentioned, Chief Justice John Roberts wrote for the majority, the law "creates a criminal prohibition of alarming breadth," which, in this case, did not even apply to crush videos themselves, but, rather, to a man who "ran a business, 'Dogs of Velvet and Steel,' and an associated Web site, through which he sold videos of pit bulls engaging in dogfights and attacking other animals."

Among these videos were Japan Pit Fights and Pick-A-Winna: A Pit Bull Documentary, which include contemporary footage of dogfights in Japan (where such conduct is allegedly legal) as well as footage of American dogfights from the 1960's and 1970's. A third video, Catch Dogs and Country Living, depicts the use of pit bulls to hunt wild boar, as well as a "gruesome" scene of a pit bull attacking a domestic farm pig.

The government tried to argue that these kinds of videos are of so little societal worth that they do not merit First Amendment protection. What's more, the 1999 law included a key provision that would exempt from prosecution depictions of animal cruelty that contain "serious religious, political, scientific, educational, journalistic, historical, or artistic value." (Here, the word "serious" got it in trouble with the majority -- "'serious' should be taken seriously" -- which pointed out that "most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value), but it is still sheltered from government regulation.")

In his decision, Roberts acknowledged that animal rights are worth protecting and there is jurisprudence that shows this, going back to 1910. "As the Government notes, the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies … ('No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man's use')." Unfortunately, he wrote, "we are unaware of any similar tradition excluding depictions of animal cruelty from 'the freedom of speech' codified in the First Amendment, and the Government points us to none."

The debate, then, comes down a gruesome act versus a depiction of a gruesome act -- a crucial difference for journalists, publishers and documentary filmmakers. (Fourteen news media organizations filed an amicus brief on behalf of Stevens, holding that "the exceptions clause" of the 1999 law "is not nearly broad enough to protect legitimate news coverage" and arguing that "it is this very interest in protecting animals from abuse that makes speech about their treatment so valuable.")