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

The Supreme Court's 8-1 ruling comes down to protecting the depiction of a gruesome act on 1st Amendment grounds, not the legality of the gruesome act itself.

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It was this "exceptions clause" that, ultimately, failed to pass constitutional muster. "The only thing standing between defendants who sell such depictions and five years in federal prison -- other than the mercy of a prosecutor -- is the statute's exceptions clause," Roberts wrote.

"Quite apart from the requirement of "serious" value … the excepted speech must also fall within one of the enumerated categories. Much speech does not," Roberts pointed out, adding, philosophically, "Most hunting videos, for example, are not obviously instructional in nature, except in the sense that all life is a lesson."

What's more, in a place like Washington D.C., where hunting is illegal, the sale of magazines or videos depicting hunting would be considered a crime. "The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude."

Free Speech Trumps Animal Rights

It has been almost 30 years since the Court declared a specific exception to the First Amendment. Among the ones that do exist are obscenity, defamation and fraud; in 1982 the Court also ruled that child pornography is not protected speech, a decision it upheld in 2008.

In his lonely 20-page dissent, Justice Alito drew a parallel between the sale of child pornography and the sale of crush videos, arguing that while the First Amendment protects free speech, "it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes."

"Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct," he wrote. "The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos."

The decision by the Court, Alito warned, "has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production."

He may have a point. According to Wayne Pacelle, president of the Humane Society of the United States, when Bill Clinton first passed the law in 1999, it "almost immediately dried up the crush video industry."

But as Adam Liptak wrote this week in the New York Times, Clinton himself "expressed reservations, prompted by the First Amendment," when he first signed the bill into law, asking the Justice Department to only use it to prosecute "wanton cruelty to animals designed to appeal to a prurient interest in sex."

Instead, "prosecutions under the law appear to have been pursued only against people accused of trafficking in dogfighting videos," rather than those who have actually carried out dogfights (or, in the case of Michael Vick, who got less jail time than Stevens, dogfighting rings). Dogfighting itself is already illegal in all 50 states.

The Supreme Court's ruling leaves room for the possibility that a narrower version of the law could be written, one that would not violate the Constitution. As it stands, Roberts wrote, the Court does not have "freewheeling authority to declare new categories of speech outside the scope of the First Amendment."

The Court's decision shouldn't come as too much of a surprise to anyone who witnessed or read the oral arguments last fall, entertainingly summarized by Slate's Dahlia Lithwick in an article subtitled "The Supreme Court mauls the law banning animal-cruelty videos." (In her depiction, Principal Deputy Solicitor General Neal Katyal was a hapless creature before nine eager predators, who, one by one, swooped in on the attack. The ruling, it turns out, reflects this.)

Others might recall the justice's weird fixation on a particular theoretical during arguments: Would the First Amendment protect a live, pay-per-view "human sacrifice channel"? Anyone seeking a definitive answer on this will be disappointed by the ruling.