A decade ago, Congress decided it was time to address what a House report called “a very specific sexual fetish.” There are people, it turns out, who take pleasure from watching videos of small animals being crushed.
“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” the report said. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”
So, in 1999, Congress made it a crime to sell “crush videos” and almost all other depictions of unlawful cruelty to animals.
The conduct itself is disgusting, of course. But the law does not criminalize the cruelty, which was already illegal in all 50 states, only its depiction. By making such expressions illegal — adding a new category of speech to the very few that are entirely unprotected under the First Amendment — the law raised profound constitutional questions about whether and when the government can decide that some sorts of information have no social value at all.
The Supreme Court is likely to address those questions soon in the case of Robert J. Stevens, a Virginia man sentenced to 37 months in prison under the law for selling videos of dogfights.
In July, by a vote of 10 to 3, the United States Court of Appeals for the Third Circuit, in Philadelphia, reversed Mr. Stevens’s conviction and struck down the law, saying it violated the constitutional right to free speech.
Last month, the United States solicitor general asked the Supreme Court to hear the case. “Depictions of the intentional infliction of suffering on vulnerable creatures,” the brief said, “play no essential role in the expression of ideas.” The First Amendment, the brief went on, is therefore irrelevant to the case.
Unlike private litigants, who face long odds in persuading the court to hear their cases, the solicitor general’s success rate is between 50 percent and 70 percent. Perhaps even more important, the case involves a federal statute that has been held unconstitutional.
“The general rule of thumb,” said Richard J. Lazarus, a law professor at Georgetown, “is that if one branch is going to hold another branch’s conduct unconstitutional, it ought to be the Supreme Court.”
The videos Mr. Stevens sold sound disturbing. But some of what they show took place decades ago or in Japan, where dog fighting appears to be legal. Neither point matters under the 1999 law, which requires only that the activities shown be illegal where the video was bought or sold.
That means it may well be a crime for an American to sell a video of a bullfight that took place in Spain, where bullfighting is legal, or of hunting or fishing out of season.
“It is hard to imagine,” Mr. Stevens’s lawyers told the appeals court, “how the punishment of depictions of conduct which occurred a long time ago, at a time when it was not even illegal, or in a country where it is not illegal, can prevent animal cruelty here and now, at a time and a place where it is illegal.”
The law does contain an exception for materials of “serious religious, political, scientific, educational, journalistic, historical or artistic value.” But Eugene Volokh, a First Amendment specialist at the University of California, Los Angeles, said the exception was small comfort. “What constitutes serious value,” Professor Volokh said, “is very much in the eye of the beholder.”
When President Bill Clinton signed the bill into law, he issued a statement instructing the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”
Whatever else may be said of presidential signing statements, they do not bind the next administration. The current Justice Department has pursued at least three prosecutions under the law, all involving videos of dogfights.
There are only a few categories of speech wholly outside the protection of the First Amendment, including fighting words, some kinds of incitement, obscenity and, starting in 1982, nonobscene pornography involving children.
That last was a major constitutional shift, said Amy Adler, a law professor at New York University. Child pornography, she wrote in The University of Pennsylvania Law Review in 2001, “is the only place in First Amendment law were the Supreme Court has accepted the idea that we can constitutionally criminalize the depiction of a crime.”
In an interview, Professor Adler said that several of the reasons offered for making the distribution of child pornography a crime did not offer much support for the animal cruelty law. “It’s hard to say we’re going to dry up the market for bullfighting in Spain,” for example, she said.
Along similar lines, Judge D. Brooks Smith, writing for the appeals court majority, said animals did not experience shame and other psychological harm. “While animals are sentient creatures worthy of human kindness and human care,” he wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace.”
Professor Volokh, who said he believed the law was unconstitutional, offered a prediction about its fate in the Supreme Court. “I think they’re going to strike it down,” he said. “It’s going to be at least 6-3, perhaps even unanimous.”
But even free speech absolutists might find their beliefs tested by the “crush videos” that initially prompted the law.
Before the 1999 law was enacted, according to the Humane Society of the United States, there were some 2,000 crush videos available in the marketplace, for $15 to $300 each. After 1999, said Jonathan R. Lovvorn, chief counsel of the Humane Society, that market all but disappeared.
But since July, Mr. Lovvorn said, crush videos have “popped back up on the Internet as a result of the Third Circuit’s ruling.”
Mr. Lovvorn provided a reporter with links to two examples, one involving a kitten, the other a puppy. May you never see them.