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Supreme Court Seems Set To Kill Ban On Animal Cruelty Images

We previewed earlier today one of the highest profile cases on the Supreme Court's docket this fall, the animal-cruelty case that was argued today.

Based on the pattern of questioning by justices on both sides of the court's ideological spectrum, it appears the law that makes it illegal to have or sell photos or videos depicting animal cruelty is likely to be struck down.

Here's part of NPR Supreme Court watcher, Nina Totenberg's report heard on All Things Considered.

Defending the statute today, Deputy Solicitor General Neal Katyal contended that Congress wrote its ban narrowly by creating exemptions from prosecution for depictions that have a serious educational, scientific, or artistic purposes.

Chief Justice John Roberts bore in on those exemptions as evidence that prosecutions would depend on the views of the speaker: How can you tell these aren't political videos, he asked. You have organizations like PETA, that use these videos to generate support for their efforts to ban certain conduct. Why, he asked, couldn't Mr. Stevens videos be seen as an effort to legalize the same conduct?

Justice Sotomayor: What's the difference between this video and David Roma's documentary expose about pit bulls and dogfighting? That footage, she observed, was far more gruesome.

Answer: The line will sometimes be difficult to draw, just as it is in child pornography.

Justice Scalia: Child pornography is obscenity as far as I am concerned, traditionally is not covered by the First Amendment. This is something quite different. What if I am an aficianado of bullfights, and I think they ennoble both beast and man, and I want to persuade people that we should have them? I would not be able to to market videos showing people how exciting a bullfight is.

Answer: Congress, in debating this law, talked about Spanish bullfighting as educational and artistic.

Justice Scalia, his voice rising: Wait, wait wait, any depiction of bullfighting is educational?

Answer: Spanish bullfighting.

Justice Breyer: Look what you've done. You've taken these words, which are a little vague —serious educational, scientific, artistic— and you apply them not just to crush videos but to everything from dogfighting to fox hunting and stuffing geese for pate de foie gras, and sometimes quail hunting. In some states these things are legal, and in others they are not and people won't know what is legal and illegal.

Justice Ginsburg: What's the difference between... bullfighting, cockfighting, dogfighting... I don't know where you put cockfighting?

While Nina reports that the justices had some tough questions for Stevens' lawyer, the deputy solicitor general clearly got the worst of it.
Here's a transcript of the arguments.

Scotusblog has this succinct bit of analysis:

Congress' attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed. Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal. Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.

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