dogfightA quarter century has passed since the U.S. Supreme Court ruled that a category of speech was so lacking in redeeming qualities that it fell outside the protections of the First Amendment. At that time, child pornography was the issue. But on the first Monday in October – the traditional start of the Supreme Court’s term – the Justices heard arguments that could help determine if they will add another non-protected category. It won’t, however, be easy. In oral arguments, the court indicated that Congress may have gone too far in trying to protect animals from abuse. Attorneys for the Obama administration asked Justices to reinstate a 10-year-old law banning videos that depict the torture, mutilation and death of animals. The arguments turned to animal cruelty, and in some sense sought to define it as it relates to everything from bullfighting and cockfighting, to fattening geese for pate de foie gras – even mention of the legal limits of a hypothetical “human sacrifice channel.” The federal law in question was originally intended to ban what are called “crush videos” – pornography that appeals to a sexual fetish in which women (typically in high heels) step on or otherwise torture small animals. An appeals court struck down the law, and also threw out the only conviction made under it, that of a Virginia man named Robert Stevens, who was convicted not of making crush videos but films that showed pit-bull fights. The case (United States v. Stevens) has split supporters of free speech and animal rights. Groups like the Humane Society actively support the law, saying that it targets the depiction of acts that are already illegal under both federal and state laws. They say the statute has also helped eliminate the market for videos depicting animal cruelty and abuse. But news and media organizations, along with civil liberties groups and others argue that the law is written too broadly, and leaves too much to the discretion of prosecutors, who might choose to pursue cases against films that depict bullfighting and hunting and bullfighting. U.S. Deputy Solicitor General Neal Katyal, representing the Obama administration, told Justices that the statute is “narrowly targeted,” and contains exceptions for films with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” But the Justices pounced on Katyal; they argued that the law gives the federal government too much leeway in making such subjective decisions. In particular, Justice Antonin Scalia, an enthusiastic hunter, rejected any comparison between child pornography and the treatment of animals. Other members of the high court said it’s hard to know what Congress finds to be acceptable and objectionable. Justice Ruth Bader Ginsburg asked Katyal what the difference is between bullfighting, cockfighting, and dogfighting. “You say dogfighting is included, but bullfighting?,” she asked. “And I don’t know where you put cockfighting.” Justice Samuel A. Alito, Jr. was the only “Supreme” who gave thought whether the law should be struck down entirely. Alito said the statute had been invoked just three times in 10 years (in each instance, a case that involved dogfighting videos), which he offered as proof that prosecutors have not targeted hunting videos or abused the law as his colleagues posited. Alito also challenged the notion that government plays no part in outlawing certain types of expression. “What about people who like to watch human sacrifice?,” he asked, and wondered out loud whether Congress has the legislative power to prevent people from ordering a “human sacrifice channel” if one were televised from a hypothetical place where human sacrifice is legal. The attorney for the animal rights groups said that Congress shouldn’t just try to “shield” the public from speech with which it disagrees. “Something is repulsive, incredibly offensive or maybe even involves some harm to people does not mean that depictions of it that do not cause that harm, that are not integrally tied to it, that are not the purpose and animating motivation for that harm cannot be proscribed,” she said. But Chief Justice John G. Roberts Jr. wasn’t impressed with the argument: “Can Congress ban the human sacrifice channel or not?” Justice Scalia offered his interpretation: “It’s not up to the government to tell us what our worst instincts are,” he said, adding that “you can create a lot of First Amendment horribles. What about, what about a new Adolf Hitler? Can we censor any depiction of that new Adolf Hitler and the horrible things that he is proposing, including extermination of a race? Is that proscribable under the First Amendment?”