ROBERT SIEGEL, host:
The Supreme Court dealt with a disturbing subject today: depictions of animal cruelty. By an 8-1 vote, the court struck down a federal law banning photos, videos, and other images of animal cruelty.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: In 1999, Congress passed a law aimed initially at something called crush videos. These videos of women in high heels crushing small animals like mice and kittens are apparently somehow a sexual fetish. The law, however, has broad language. It makes it a crime to posses or sell any depiction of animal cruelty, specifically, the killing, wounding, torturing or mutilation of an animal as long as the conduct is illegal in the place where the prosecution is brought.
Enter Robert Stevens, a pit bull lover or exploiter, depending on who's telling the story. He did not make any dogfighting films or stage any fights. Instead, he compiled films made by others, films of pit bulls fighting mainly in Japan, where it's legal.
Stevens sold the films commercially. His critics said he was exploiting dogfighting for profit. He denies that, saying his videos are part of his educational work on the breed.
Mr. ROBERT STEVENS: What you actually see is two dogs wrestling around because I edited out all that stuff. My genre, what I'm saying, was not to sensationalize and show bloody, gory stuff.
TOTENBERG: In more than 10 years, Stevens was the only person prosecuted under the animal cruelty law. The Virginia resident was convicted in Pennsylvania and sentenced to three years in prison. But today, the Supreme Court threw out his conviction and declared the law unconstitutional.
Writing for the eight-member court majority, Chief Justice John Roberts first tackled the government's assertion that a law can ban any category of speech if Congress deems that category not worthy of protection under the First Amendment guarantee of free expression. The government's assertion, said the chief justice, is, quote, "startling and dangerous."
Yes, said Roberts, the court has long held certain categories of speech are not protected by the First Amendment - child pornography, obscenity and fraud, for instance - but he said that does not mean the court has freewheeling authority to declare new categories of speech outside the scope of the First Amendment.
In this case, the court went on, Congress used language of such, quote, "alarming breadth," that it would make it a crime to sell hunting videos in the District of Columbia, where hunting is illegal.
Whether Congress could in the future write a statute that would be sufficiently targeted at crush videos is a question the court declined to answer, but Wayne Pacelle, president of the Humane Society of the United States, is urging Congress to try.
Mr. WAYNE PACELLE (President, Humane Society of the United States): We really do believe that Congress can find a way to pass a law that forbids illegal acts of animal cruelty that will pass constitutional muster.
TOTENBERG: But hunting and fishing enthusiasts, like Laurie Lee Dovey, executive director of the Professional Outdoor Media Association, are doubtful.
Ms. LAURIE LEE DOVEY (Executive Director, Professional Outdoor Media Association): I dont believe there can be, and I think that we must, in America, rely on our First Amendment rights to speak freely and to discuss things that are not comfortable to discuss. That's what makes us America.
TOTENBERG: The lone dissenter in today's ruling was Justice Samuel Alito, who charged that the practical effect of the court's ruling would be to legalize a form of depraved entertainment.
Today's decision not only struck down a law enacted by Congress, it delivered a rather pointed rebuke to two individuals, as well: first the Obama administration's Solicitor General Elena Kagan, a top contender for the U.S. Supreme Court, whose brief on behalf of the administration was thoroughly repudiated in the strongest terms, or. as Gene Schaerr, who filed a brief on the other side for the libertarian CATO Institute, put it: If Kagan supervised the brief she signed...
Mr. GENE SCHAERR (CATO Institute): I would agree that it does seem to raise questions about her judgment.
TOTENBERG: The other loser was former federal prosecutor Mary Beth Buchanan, now a Republican candidate for Congress in Pennsylvania. Her decision to bring the Stevens case, the court said, was evidence the government could not be trusted to act responsibly.
Nina Totenberg, NPR News, Washington.
SIEGEL: And we should note that NPR joined other news organizations in filing a brief in this case. The brief argued that the federal law banning the so-called crush videos and images was unconstitutional.
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