Cruelty in the Court

No matter how fast and far you lower your opinion of the human race, there is no keeping up with the reasons for doing so. Or so the Supreme Court justices must have thought last week as they considered the constitutionality of a law Congress passed in 1999 primarily to suppress the market for crush videos, which supposedly satisfy some people's sexual fetishes by showing women stomping— with stiletto heels or bare feet, or otherwise torturing—kittens, puppies, and other small animals. (Click here to follow George F. Will)

The law makes it a crime to create, sell or possess "any visual or auditory depiction … of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed." But the law, the purpose of which is to encourage humane treatment of animals and discourage the desensitization of human beings, exempts depictions of those things if the depictions have "serious religious, political, scientific, educational, journalistic, historical, or artistic value."

Those exemptions did not prevent Robert J. Stevens of Pittsville, Va., from being sentenced to 37 months in prison because, operating a business from his house, he sold to undercover agents three videos that contained scenes from dogfights between pit bulls, and pit bulls being used to hunt and kill wild boars. Stevens had nothing to do with staging the fights, which were then legal where they occurred.

Stevens's lawyers argued that the videos were celebrations of the pit-bull breed. The prosecutors argued that the videos encouraged cruelty and had none of the redeeming values. An appeals court struck down his conviction and the law. Last week, the Supreme Court considered whether the law violates the First Amendment guarantee of freedom of expression.

When President Bill Clinton signed the law, he said his administration would treat it as targeting only crush videos and other depictions of cruelty intended to appeal to a "prurient" sexual interest. But President George W. Bush's Justice Department prosecuted Stevens for videos that are violent but not prurient.

Professor Thomas E. Baker of the Florida International University College of Law in Miami says what makes this case important is that the Obama administration is asking the court to create a new category of expressive activity that is not protected by the First Amendment. The court has not done that in the 25 years since it held that child pornography is such a category. Other categories of unprotected speech are "fighting words," threats, speech that incites imminent illegal activity, and obscenity.