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High Court Hears Animal Cruelty Video Case


From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.


And I'm Michele Norris.

And Melissa, I've been out for four months now, working on a book project. It is good to be back here with you in Studio 2A.

BLOCK: And welcome back. It's great to have you with us.

And first up this hour, we're going to hear about a major free speech case argued today before the Supreme Court. At issue is whether the government can make it a crime to sell or possess any depiction of animal cruelty. This is intense stuff. The law is aimed specifically at a sort of sexual fetish video called crush videos, which involve crushing small animals to death.

NPR's Nina Totenberg reports on today's arguments.

NINA TOTENBERG: The law bans the possession or sale of photos, videos, or anything else that depicts the intentional maiming, torture or killing of an animal. Robert Stevens, the only person tried under the law, was not accused of making a crush video. He was convicted and sentenced to three years in prison for selling dogfighting videos. He didn't stage the fights or even film them. He pieced together films made by others, mainly in Japan, where dogfighting is legal. A federal appeals court threw out the conviction and struck down the law.

The appeals court said it was written so broadly that it could apply to everything from photos in Field and Stream magazine to hunting videos or even Hollywood movies like "Blazing Saddles," in which Alex Karras punches a horse.


U: Hey, you can't park that animal over there. It's illegal.


TOTENBERG: Seeking to revive the animal cruelty law, the government appealed to the Supreme Court. The Obama administration contended that depictions of animal cruelty are not covered by the First Amendment guarantee of free speech, just as child pornography is not covered. Defending the statute today, Deputy Solicitor General Neal Katyal argued that Congress wrote its ban narrowly by creating exemptions from prosecution for depictions that have a serious educational, scientific, or artistic purpose. Chief Justice John Roberts bore in on those exemptions as evidence that prosecutions would depend on the views of the speaker.

NORRIS: What's the difference between this video and David Roma's documentary expose about pit bulls and dogfighting? That footage, she observed, was far more gruesome. Answer: The line will sometimes be difficult to draw, just as it is in child pornography. Justice Scalia: Child pornography is obscenity as far as I'm concerned, traditionally not covered by the First Amendment. This is something quite different. What if I'm an aficionado of bullfights? And I think they ennoble both beast and man. And I want to persuade people that we should have them? I would not be able to market videos showing people how exciting a bullfight is. Answer: Congress, in debating this law, talked about Spanish bullfighting as educational and artistic. Scalia, his voice rising, wait, wait, wait, any depiction of bullfighting is educational? Answer: Spanish bullfighting.

J: Look what you've done. You've taken these words, which are a little vague - serious educational, scientific, artistic. And you apply them not just to crush videos but to everything from dogfighting to fox hunting, to stuffing geese for pate de foie gras, and sometimes quail hunting. In some states, these things are legal, and in others they're not and people won't know what's legal and illegal. Justice Ginsburg: What's the difference between dogfighting and bullfighting, and I don't know where you put cockfighting. Justices Kennedy and Stevens asked about hunting with a bull and arrow noting that some depictions can be pretty gory. The government's Mr. Katyal replied that since hunting is legal in all 50 states, it's not covered by the law.

BLOCK: Here, "kill" is in the context of animal cruelty. Justice Scalia: Some people think killing an animal is cruel. Justice Alito: Could you ban a live broadcast of a gladiator contest like they had in ancient Rome. Answer: That would fall under the historical exemption of the law. Justice Scalia, incredulous: So, if you dress up like an ancient Roman, the whole thing is of historical interest?

BLOCK: What I'd like you to confront is that in child pornography cases, the very taking of the picture is the abuse of the child. Whereas here, Mr. Stevens was not even a promoter of the dogfight and the fight goes on whether he's there with a camera or not. Representing Mr. Stevens in court today, lawyer Patricia Mallet had an easier time of it, but not a cakewalk. Chief Justice Roberts and Justice Samuel Alito asked whether the court should worry about real-world problems instead of all the hypotheticals being bandied about.

BLOCK: Well, what about people who like human sacrifice? Suppose that's taking place someplace in the world. I mean, some people here would probably love to see it - live, pay per view, on the human sacrifice channel. Could Congress ban that? When Mallet dodged the question, Chief Justice Roberts and Justice Kennedy pressed for an answer. Finally she said, no. If Congress's only purpose is to shield your eyes for you, it can't do that.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.