Supreme Court wonders: Is animal-cruelty porn protected by the First Amendment?

This is one of those kinda fun, kinda jerky free-speech cases that invites the Court to come up with the nuttiest hypotheticals it can think of, partly in order to probe whether the statute in question is too broad and partly just to see which of them can come up with the slipperiest slippery slope. I think Alito’s got this one in the bag.

Good news if you happen to get your rocks off watching women in stilettos mutilate kittens: Based on how the oral argument went, it looks like you can keep your stash.

The law applied only to illegal acts of torturing or killing animals, not legal hunting or fishing. It was intended to dry up the underground market in so-called crush videos, which show squealing animals being stomped by women in high heels. More recently, it has been used to prosecute people who sell videos of pit bulls and other dogs fighting.

On Tuesday, most of the justices sounded wary of reviving the law, fearing it might be used to ban depictions of legal activities such as hunting.

Justice Antonin Scalia, an avid hunter, insisted the 1st Amendment does not allow the government to limit speech and expression, unless it involves sex or obscenity…

Describing a hypothetical scenario, Alito said there might well be a “pay per view” market for programs made outside the United States and beyond the power of U.S. law that showed people actually being killed. He called it the “Human Sacrifice Channel” and wondered aloud whether Congress could outlaw the showing of such programs in this country.

“Live. Pay-per-view, you know, on the Human Sacrifice Channel. That’s OK?” Alito asked.

The statute has exceptions for videos with “artistic or social value,” e.g. an ASPCA film of a slaughterhouse, so in theory there’s no risk that an animal rights crusader’s going to get pinched.

If you don’t believe in obscenity laws as a matter of principle, fair enough, but Scalia seems to, in which case I’d love to know: If filming a couple of dogs ripping each other apart for some degenerate’s amusement isn’t “obscene,” what is? Child porn isn’t protected under the First Amendment because it necessarily involves cruelty to an unconsenting victim; we have a similar situation here, albeit with the wrinkle of having to distinguish “sporting” violence against animals, like hunting where the point is the kill, from “prurient” violence, like crush vids where the point is suffering for suffering’s sake. Is that so difficult? Animal cruelty statutes manage to do it; you could build on those by saying it’s illegal to distribute videos of activity prohibited by the jurisdiction’s cruelty law. Exit question: How “slippery” is the slippery slope here, really?

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