Supreme Court Kills Law on Animal Cruelty Videos

Justice Alito's dissent: the ruling has "the practical effect of legalizing the sale" of crush videos

Robert Stevens of Virginia made videos about pit bull fights. He was prosecuted under a law banning depictions of animal cruelty--"a 1999 law intended," in the words of the Associated Press, "to limit Internet sales of so-called crush videos, which appeal to a certain sexual fetish by showing women crushing to death small animals with their bare feet or high-heeled shoes."

On Tuesday, the Supreme Court struck down that law, ruling that in its "overbreadth" the law violated the First Amendment right to free speech.  Of course, the Supreme Court isn't declaring animal cruelty legal--there are still plenty of state laws banning such cruelty. But the effective re-legalization of animal-cruelty videos is sure to upset animal rights groups. So what was the court thinking? Here's a summary of the developments, in which all but one of the justices decided this law went too far.

• Why This Law in Particular Is Unconstitutional  Determining which categories of speech can and can't be banned, argues Chief Justice Roberts for the court, should not be a matter of cost-benefit analysis: "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs." The court decided child pornography was exempt from First Amendment protection only because, in that case, "the market for child pornography was 'intrinsically related' to the underlying abuse." Though one might argue that the market for crush videos is similarly related to the underlying abuse, this law forbids far more than crush videos.
  

However "growing" and "lucrative" the markets for crush videos and dogfighting depictions might be ... they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of [the law in question]. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that [this law] is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.

• That's Ridiculous  This ruling, writes Justice Alito in dissent, "has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production." The case under discussion is about dogfighting, and the courts should be deciding "whether the videos that respondent sold are constitutionally protected." But even if the courts do feel the need to rule on the question of the law's "overbreadth," he still doesn't think this law "bans a substantial quantity of protected speech."

• Ergo: 'Crush Videos ... Are Once Again Legal,' sums up Alex Balk succinctly at The Awl.