By Robert Barnes
Washington Post Staff Writer
Wednesday, October 7, 2009
It has been 25 years since the Supreme Court decided that a category of speech -- child pornography -- was so unredeeming that it did not merit the protection of the First Amendment. Justices gave no indication Tuesday that they were ready to add another.
In an oral argument on animal cruelty that touched on bullfighting, cockfighting, fattening geese to make pate de foie gras and even a hypothetical "human sacrifice channel," the court searched for the limits of the Constitution's guarantee of free speech. The justices indicated that Congress had gone too far in its attempt to protect animals from abuse.
The Obama administration asked the court to reinstate a 10-year-old federal law that bans the production and sale of videos that show torture, mutilation and death of animals. The primary focus of the law was to ban "crush videos," which appeal to a sexual fetish by showing women stepping on or otherwise torturing small animals.
But an appeals court struck down the law and invalidated the only conviction prosecutors have made under it, that of Robert Stevens of Pittsville, Va. He was convicted not of producing crush videos but films about pit-bull fights.
It was the first of two important First Amendment cases the court is considering in the opening week of its new term. The justices will turn Wednesday to the amendment's prohibition on government establishment of religion when they consider the appropriateness of a cross erected on federal land to honor World War I dead.
The animal cruelty case, United States v. Stevens, splits advocates of animal rights and free speech. Groups such as the Humane Society of the United States have been active supporters of the law, saying it targets only depictions of acts that already are illegal under federal and state laws and that it has helped dry up the market for videos that depict animal abuse.
Humane Society President Wayne Pacelle said before the hearing that the law attempts to disrupt "the most extreme and unimaginable acts of cruelty," and that there "should be no safe harbor in the First Amendment for those who perpetrate them."
But media companies, civil liberties groups and others say the statute is overly broad and could leave at prosecutors' discretion whether to go after films that show hunting and bullfighting and whether a documentary showing animal abuse, even if it were aimed at discouraging the practice, would be prohibited.
"I think at some level Congress has a job to write with a scalpel and not a buzz saw in the First Amendment area," said Washington lawyer Patricia A. Millett, who argued for Stevens.
Deputy Solicitor General Neal Katyal told the court that the law was "narrowly targeted" and contained exceptions for depictions that had "serious religious, political, scientific, educational, journalistic, historical or artistic value."
But he immediately ran into trouble with the justices, who said the law put the government in the position of making those subjective decisions.
A finger-pointing Justice Antonin Scalia, an avid hunter, was his chief adversary and rejected any comparison between the treatment of animals and child pornography.
Other justices piled on the hypotheticals and said it was difficult to discern what Congress found acceptable and objectionable.
"What is the difference between . . . bullfighting, cockfighting, dogfighting?" Justice Ruth Bader Ginsburg asked Katyal. "You say dogfighting is included, but bullfighting? And I don't know where you put cockfighting."
Justice Samuel A. Alito Jr. was the only member of the court who expressed concern about whether the entire statute should be struck. He noted that the law had been used only three times in 10 years -- all in cases involving dogfighting videos -- citing that as proof that prosecutors have not abused it to target hunting videos or in any other cases his colleagues posited.
Alito said the fact that the law has not been used against the producers of crush videos may prove the government's argument that the law had dried up the market for such films.
He also challenged the theory that government had no role in outlawing some types of expression.
"What about people who like to watch human sacrifice?" he asked, wondering aloud whether Congress would have the power to keep people from ordering a "human sacrifice channel" if one were available from a place where such activity was legal.
Millett seemed to struggle for an answer. She said Congress should not simply try to "shield" citizens from speech with which it disagrees.
"Something is repulsive, incredibly offensive or maybe even involves some harm to people does not mean that -- depictions of it that do not cause that harm, that are not integrally tied to it, that are not the purpose and animating motivation for that harm cannot be proscribed," she said.
Chief Justice John G. Roberts Jr. took up the cause: "Can Congress ban the human sacrifice channel or not?"
Scalia had his own answer. "It's not up to the government to tell us what our worst instincts are," he said.
He added that "you can create a lot of First Amendment horribles. What about -- what about a new Adolf Hitler? Can we censor any depiction of that new Adolf Hitler and the horrible things that he is proposing, including extermination of a race? Is that proscribable under the First Amendment?"