Court hears free-speech case involving dogfighting videos

WASHINGTON

Supreme Court justices, skeptical of a law aimed at graphic animal-cruelty videos, touched Tuesday on dogfights, bullfights, cockfights, bow-and-arrow hunting, even a hypothetical television channel devoted to human sacrifice. Oh, yes, and freedom of speech.

The court weighed arguments over a 10-year-old law that bans the production and sale of the videos. A federal appeals court struck down the law and invalidated the conviction of Robert Stevens of Pittsville, Va., who was sentenced to three years in prison for videos he made about pit bull fights.

In the end, the justices appeared inclined to agree that the law is too broad and could, in some instances, apply to videos about hunting.

"Why not do a simpler thing?" Justice Stephen Breyer asked an administration lawyer. "Ask Congress to write a statute that actually aims at the frightful things they were trying to prohibit."

But the lawyer, Deputy Solicitor General Neal Katyal, said Congress was careful to exempt hunting, educational, journalistic and other depictions from the law. Katyal urged the justices not to wipe away the law in its entirety, but to allow courts to decide on a case-by-case basis whether videos are prohibited.

When Congress passed the law and President Bill Clinton signed it in 1999, lawmakers were especially interested in limiting Internet sales of so-called crush videos, which appeal to a certain sexual fetish by showing women crushing to death small animals with their bare feet or high-heeled shoes.

The government said the crush videos virtually disappeared after the law took effect. Only three people have been prosecuted under the law and none relating to crush videos. Animal cruelty and dogfighting are illegal throughout the country.

Justice Samuel Alito sounded the most receptive to the government's argument. Alito wondered whether the court should focus on the potential prosecution of hunters or, citing a Breyer example, someone who produces foie gras from a goose. "Or do we look at what's happening in the real world?" he asked Stevens' lawyer, Patricia Millett.

Millett said Congress has to be very careful when restricting speech and must use a "scalpel, not a buzz saw."

It was Alito who asked about the human-sacrifice channel, while Justice Anthony Kennedy chimed in with a scenario involving the airing of live pit bull fights in movie theaters, with a $10 charge for tickets.

The questions were intended to test the limits of First Amendment freedoms — and the right of Congress to intervene — in matters that most people would find offensive.

Justice Antonin Scalia was having none of it. In the area of free speech, Scalia said, "it's not up to the government to decide what are people's worst instincts."

Scalia also pointed out that opponents of animal fighting may feel more free to use the images to express their views than proponents. "People who like bullfighting, who like dogfighting, who like cockfighting ... that side of the debate is entitled to make its point as forcefully as possible," he said.

Stevens noted in court papers that his sentence was 14 months longer than professional football player Michael Vick's prison term for running a dogfighting ring.

Animal rights groups, including the Humane Society of the United States and the American Society for the Prevention of Cruelty to Animals, and 26 states have joined the administration in support of the law. The government says videos showing animal cruelty should be treated like child pornography, not entitled to constitutional protection.

Stevens says he also opposes animal cruelty, including dogfighting. But he argues that the government should not be able to jail someone for making films that are not obscene, inflammatory or untruthful.

A decision is expected by the spring.