New York Times legal columnist Adam Liptak notes that the Supreme Court is likely to hear the federal government's challenge to a decision in which a federal appeals court concluded that a 1999 law making it a felony to sell depictions of animal cruelty violates the First Amendment. The law was aimed primarily at "crush" videos, in which women use their bare feet or spike-heeled shoes to injure and kill small animals. As testimony quoted in the House committee report on the legislation put it, "these depictions often appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting." Yet the law is broadly worded, prohibiting the creation, sale, or commercial possession of audio, video, or still photographs of "animal cruelty" that is illegal in the jurisdiction where the material is created, sold, or possessed. The defendant in the case that the solicitor general wants the Supreme Court to consider, which is the first such case to go to trial, was arrested for selling videos of dogfighting and of pit bulls attacking pigs and boars.
As Liptak notes, the law covers footage even of conduct that was legal at the time or in the place where it occurred. The dogfighting in this case happened in Japan, where the sport "appears to be legal," and in the United States in the 1960s and '70s. Videos of bull fighting in Spain, bear baiting in Russia, or even hunting out of season likewise could be grounds for felony charges under the law. There is an exception for material with "serious religious, political, scientific, educational, journalistic, historical, or artistic value," but how the government would determine which depictions qualify is anybody's guess. As UCLA law professor Eugene Volokh tells Liptak, "what constitutes serious value is very much in the eye of the beholder." So it's not surprising that the U.S. Court of Appeals for the 3rd Circuit ruled in 2007 that the law is unconstitutional. Volokh predicts that if the Supreme Court hears the case it will agree, by a large margin and perhaps unanimously, declining to recognize a new category of speech that, like obscenity, threats, "fighting words," and incitement to "imminent lawless action," is completely outside the protection of the First Amendment.
I'm not a dogfighting fan, and the crush videos sound pretty appalling. Still, it seems obvious to me that merely distributing a record of offensive conduct, even when the conduct itself is illegal, should be permitted. In any case, what does it say about our political culture that Congress felt it necessary to prohibit the sale of videos showing cruelty to animals but has not passed a law attempting to suppress the traffic in videos of cruelty to people?
The 3rd Circuit's ruling is here (PDF).