Crushing Censorship

First Amendment victory

In 1999, when Congress made it a federal crime to create or distribute images of cruelty to animals, the target was "crush videos," a form of fetish porn aimed at people who get a sexual thrill from watching women stomp on little creatures. But as the Supreme Court noted when it overturned the ban in April, all of the prosecutions under the law have instead involved dogfight movies, and the definition of proscribed material is broad enough to encompass much more, including hunting magazines and films of bullfights.

By a nearly unanimous vote (with Justice Samuel Alito the sole dissenter), the Court ruled in U.S. v. Stevens that the ban on depictions of animal cruelty—defined as visual or auditory records "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" when that conduct violates the law of the jurisdiction where the material is created, possessed, or sold—was "substantially overbroad." It declined the Obama administration's invitation to recognize a new category of speech that, along with defamation, incitement, and obscenity, does not merit protection under the First Amendment, calling the government's argument "startling and dangerous."

That decision bodes well for the challenge to California's 2005 law banning the sale or rental of violent video games to minors, which the Court has agreed to hear. As in Stevens, upholding the ban would require stripping constitutional protection from a new category of speech.

The California law applies to any game that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being" if "a reasonable person, considering the game as a whole, would find [it] appeals to a deviant or morbid interest of minors"; if it is "patently offensive to prevailing standards in the community as to what is suitable for minors"; and if it lacks "serious literary, artistic, political, or scientific value for minors." The Court will hear the case, Schwarzenegger v. Entertainment Merchants Association, during the term that begins in October.