By Robert Barnes
Washington Post Staff Writer
Wednesday, April 21, 2010; A03
The Supreme Court on Tuesday forcefully struck down a federal law aimed at banning depictions of dog fighting and other violence against animals, saying it violated constitutional guarantees of free speech and created a "criminal prohibition of alarming breadth."
The 8 to 1 ruling, written by Chief Justice John G. Roberts Jr., was a ringing endorsement of the First Amendment's protection of even distasteful expression. Roberts called "startling and dangerous" the government's argument that the value of certain categories of speech should be weighed against their societal costs when protecting free speech.
"The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs," Roberts wrote. "Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."
The decision was the second major First Amendment ruling of the term, and far more unified than the first. In January, a divided court ruled in Citizens United v. Federal Election Commission that corporations and unions have a right to use their general treasuries and profits to spend freely on political ads for and against specific candidates.
Paul M. Smith, a Washington lawyer who had filed an amicus brief in the animal cruelty case on behalf of civil libertarians who opposed the law, called it "quite a strong decision" and said it was more evidence of a "court that is moving in the direction of strong enforcement of the First Amendment."
The law was enacted in 1999 to forbid sales of so-called crush videos. They appeal to a certain sexual fetish by depicting the torture of animals -- cats, dogs, monkeys, mice and hamsters, according to Congress -- or showing them being crushed to death by women wearing stiletto heels or with their bare feet. While dog-fighting and other forms of animal cruelty are already illegal, Congress said the legislation was necessary to stop the production of videos for commercial gain.
But the government has not used the law to prosecute any producer of a crush video. Instead, the case before the court, United States v. Stevens, involves Robert Stevens of Pittsville, Va., who was sentenced to three years in prison for making videos of pit bulls fighting. An appeals court overturned the conviction when it ruled the law was unconstitutional.
Roberts' opinion said the court was not passing judgment about whether a narrower statute limited just to crush videos and "other depictions of extreme animal cruelty" might be constitutional.
But the court said the legislation passed by Congress was far too broad. Anyone who "creates, sells or possesses a depiction of animal cruelty" for commercial gain can be imprisoned for up to five years. A depiction of cruelty was defined as one in which "a living animal is intentionally maimed, mutilated, tortured, wounded or killed."
Roberts wrote that the definition was so loose that it could include all depictions of wounding or killing animals, even hunting videos or magazines. He said the law's exemption for works of "serious religious, political, scientific, educational, journalistic, historical or artistic value" was not enough protection, and the court was not reassured by the government's argument that prosecutions were rare.
"We would not uphold an unconstitutional statute merely because the government promised to use it responsibly," he wrote.
Besides, he added, when President Bill Clinton signed the measure into law, he said the Justice Department would limit prosecutions to "wanton cruelty to animals designed to appeal to a prurient interest in sex." That was not the case in the Stevens prosecution.
The court has identified only certain categories of speech as outside the First Amendment's protection: obscenity, fraud, incitement, defamation and speech integral to criminal conduct. The last time the court decided speech was so unredeeming it did not deserve such protection was 25 years ago, and the subject was child pornography.
Justice Samuel A. Alito Jr. was the lone dissenter in Tuesday's opinion.
He said the law was enacted "not to suppress speech, but to prevent horrific acts of animal cruelty." He said that the entire law need not be found unconstitutional, and that the "practical effect" of the ruling would be to spur production of crush videos, which opponents such as the Humane Society of the United States said had decreased with passage of the 1999 law.
Humane Society President Wayne Pacelle said his organization was prepared for the court's ruling given the tough questioning of justices at oral arguments last fall. "We're hopeful that a more narrowly tailored law aimed at vicious and illegal acts of cruelty" would pass constitutional muster, he said, adding that work already is underway with supportive members of Congress.
David Horowitz, executive director of the Media Coalition, said in a statement that the court rightly decided that if the First Amendment were rewritten "every time an unpopular or distasteful subject was at issue, we wouldn't have any free speech left."
Horowitz -- whose organization represents publishers, booksellers and producers, and retailers of movies, videos and video games -- said that "animal cruelty is wrong and should be vigorously prosecuted, but as the court today found, sending people to prison for making videos is not the answer."