WASHINGTON – The Supreme Court provided a flurry of First Amendment hypothetical situations Tuesday during arguments over whether a 1999 statute that prohibits owning,selling or creating depictions of animal cruelty violates free speech rights.
Among the hypotheticals were questions about whether the government could interfere with television stations devoted to human sacrifice,ethnic cleansing,gladiator fights,hunting and bull fighting without violating the First Amendment.
The Virginia case,U.S. v. Stevens,stems from an appeal by Robert Stevens,who created and sold videotapes with footage from dog fights in Japan,where dog fighting is legal. He was convicted and sentenced to three years in prison.
The law allows videos and other media if they are of serious educational,historical,journalistic,scientific,political,artistic or religious value.
U.S. Deputy Solicitor General Neal Katyal and attorney Patricia Millett,representing Stevens,attempted to answer the hypothetical inquiries.
Katyel said such stations could be constitutional,but Congress could make them illegal by banning the underlying activity.
Millett said the shows should be permitted so long as they do not cause harm specifically for the sake of the program.
The questions helped reveal possible effects of the wide scope of the 1999 animal cruelty statute. The law could technically outlaw hunting videos in the District of Columbia,where hunting is illegal,or other areas if the “living animal is intentionally maimed,mutilated,tortured,wounded,or killed,” according to the statute.
Katyal based much of his argument on a 1982 case,New York v. Ferber,in which the court ruled that child pornography was not protected by the First Amendment. Like that statute,he said the animal cruelty law was created to diminish the commercial market for animal cruelty materials.
However Justice Antonin Scalia said depictions of animal cruelty and child pornography are quite different.
“Child pornography is obscenity as far as I'm concerned,and it has been treated as part of the same traditional classification which there has always been permission for the government to prohibit,” he said. “What if … I am an aficionado of bullfights,and I want to persuade people that bullfights are terrific and we should have them? … I would not be able to market videos showing people how exciting a bullfight is. Right?”
Justice Anthony Kennedy asked Katyal if hunting videos,where animals are killed,should be banned by the law. That led Scalia to ask how “kill” could have more than one meaning – one that could be viewed as an illegal depiction and one as legal.
“‘Kill' has one meaning,which is kill,” Scalia said. “You cannot limit that meaning just because,in addition to killing,you also prohibit torturing and other things.”
Justice Sonia Sotomayor,in her first year on the court,kicked off the questioning,asking Katyal what sort of evidence he had about the size of the illegal animal cruelty video market.
Though Sotomayor began the questioning,Scalia fired off most queries.
Millett argued that the statute was not strict enough in its scope and that banning animal cruelty depictions won't slow the market for dog fighting.
“Congress has a job to write with a scalpel and not a buzz saw in the First Amendment area,” she said. “The only way to ensure that happens is to look at the text and say,does this text fit the purpose,does it fit what the Constitution will allow?”