Yesterday the Supreme Court heard oral arguments in U.S. v. Stevens, the case involving the federal ban on depictions of animal cruelty that I discussed in my column last week. Deputy Solicitor General Neal Katyal had a hard time explaining why the Court should carve out a new category of speech that is beyond the First Amendment's protection: commercially distributed visual or audio recordings of animal mistreatment that is illegal in the place where the recordings are produced, possessed, or sold. He insisted that the law is designed to cover only material similar to "crush videos" (a genre of fetish porn in which women stomp on little animals) and politically incorrect depictions of dog fighting such as those sold by Robert Stevens, the defendant in this case. Hence the exemption for material with "serious religious, political, scientific, educational, journalistic, historical, or artistic value."
Justice Sonia Sotomayor (whose free speech record prior to joining the Court was mixed) zeroed in on the subjective, politically loaded judgments required to apply that exemption, pressing Katyal to explain the legal distinction between Stevens' videos—which show dog fighting in Japan, where it is legal, and in the U.S. during the 1960s and '70s—and the much more explicit and extensive images of dog fights in David Roma's 2006 anti-dog-fighting documentary Off the Chain. Katyal allowed that "the line will sometimes be difficult to draw." No kidding. Is there any question that if Stevens' videos had condemned dog fighting, instead of using it to illustrate the characteristics and behavior of his beloved pit bulls, he never would have been arrested, let alone sentenced to three years in prison?
Justice Antonin Scalia asked if a bullfighting enthusiast could be prosecuted under the statute for selling videos "showing people how exciting a bullfight is." Katyal said "there is no realistic danger" of such a prosecution. Why not? Unlike Stevens, who says dog fighting should remain illegal, the hypothetical bullfighting fan aims to promote the sport he documents; he is advocating the underlying "animal cruelty" that the law supposedly aims to combat. Doesn't that make his actions worse than Stevens'? Whatever the likelihood of such a prosecution, Katyal said, the prohibition would be tempered by "as-applied constitutional challenges that will be inferred from case to case." So enough with this "endless stream of fanciful hypotheticals." In other words, producers and sellers of photographs and videos have to anticipate both prosecutorial whims and, if they're wrong about that, the outcome of an expensive, time-consuming legal challenge. Can you say "chilling effect"?
In addition to Sotomayor and Scalia (who wanted to know exactly what kinds of hunting videos would be prohibited under what circumstances), Katyal faced highly skeptical questions from Chief Justice John Roberts and Justices Stephen Breyer, Anthony Kennedy, John Paul Stevens, and Ruth Bader Ginsburg (who rattled off a list of various animals whose hostile, human-arranged encounters might be covered). That's seven out of nine justices. Justice Clarence Thomas, who generally does not ask questions during oral arguments, has a strong record of defending freedom of speech (outside the context of prisons and schools) and is likely to be skeptical of this ban as well. So I count at least eight probable votes for dramatically narrowing the scope of this statute or overturning it entirely.
The justice who seemed most inclined to narrow the statute rather than toss it out was Samuel Alito, who also gave Stevens' lawyer, Patricia Millett, her toughest moments by asking her to ponder the constitutionality of banning a hypothetical Human Sacrifice Channel. After much hemming and hawing, Millett's answer seemed to be that a ban might be constitutional if it were narrowly tailored to achieve the compelling government interest of preventing the sacrifices themselves (assuming they were being performed so they could be televised and they would not happen without an audience). But if the ban were aimed simply at preventing people from seeing offensive images, she said, it would not fly. No one asked whether her answer would change if the sacrifices were volunteers.
The transcript of the arguments is here (PDF).