Free Speech and Animal Rights: George F. Will

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.

Defenders of the law say the conduct depicted in the videos is illegal in all 50 states, and unless the market for depictions of an illegal activity is suppressed, it might become a growth industry.

Those urging the court to strike down the law say that may not be true, and even if it is, it is trumped by the First Amendment. Opponents of the law say that creating categories of unprotected speech is inherently dangerous because it can be politically rewarding. Once Congress gets into the habit of pleasing this or that constituency by proscribing kinds of speech, it will not know where or how to stop. Constantly weighing the value of this or that kind of speech against its societal costs, Congress might decide to proscribe, say, any expressive activity that is supposedly, or potentially, injurious to religion, or women, or some other politically important interest. Those who oppose the law say the First Amendment proscribes a government power; it does not empower government to undertake such balancing.

Judging by the justices' interventions during oral argument, Stevens—who, by the way, opposes dogfighting—may win. They had a merry time concocting hypotheticals. What about videos intended to arouse opposition to dogfighting by showing it? What about videos of bullfighting, which Ernest Hemingway thought ennobled both bull and matador? Anyone have the stomach to watch the force-feeding of geese that produces foie gras? If there were the Human Sacrifice channel on cable, could Congress ban it? Consenting adult gladiators fighting to the death?

About Congress suppressing depictions of inhumane behavior, such as cruelty to animals, in order to combat the dehumanization of humanity, Justice Antonin Scalia said: "It's not up to the government to decide what are people's worst instincts." On the evidence of crush videos—or much of human history, for that matter—the worst is always yet to come.