Justice Samuel Alito has been hanging back until now, but he comes soaring out at Katyal like a ninja, with a hypothetical about "gladiatorial contests where the gladiators fight to the death."
Deer. Headlights. But then Katyal raises his bleeding head and suggests the gladiators hypothetical "sounds like it would fall under the historical exemption." Scalia moves in for the kill: "So if you dress up like an ancient Roman, the whole thing is of historical interest?"
Katyal explains that in the case of the dogfight video, the defendant is not, in fact, having his message suppressed: "Mr. Stevens can produce the exact same message, just as long as he doesn't involve the torture or mutilation to an actual living animal." But Scalia is back to finish him off with gusto: "But his message is that getting animals to fight is fun. That's his message!"
Patricia Millett, representing Stevens, walks calmly into this melee. She need show no fear, for she knows that the statute is incredibly stupid. Justice Alito, however, will prove a formidable adversary. First he asks whether we should be constitutionally protecting the message of producers of crush videos: "that it is sexually exciting to see a woman in high heeled shoes crushing a little animal to death?" Millett isn't quite clear in her answer, forcing Alito to ask the same question twice more.
Millett next tells the court there is a difference between interpreting a statute and alchemy, and Scalia praises her on her use of the word alchemy, which he says he has "not heard in a legal argument in a long time." Millett says that in order to render this statute constitutional, "you would have to excise this statute in and out, sever so many things. I don't know what you'd have left." Filet of statute. Gross. She adds that "even if you lock Mr. Stevens up—if you throw away every dogfighting video in the country tomorrow, dogfighting will continue."
But Scalia, brandishing a smoking hypothetical in each hand, has returned to extol the pure entertainment pleasure of a good hunting video: "Most of the hunting videos I have seen, people watch for the entertainment. They like to see a hunt."
When Millett tries to argue that it's good for people to be horrified and thus educated by videos depicting gross animal torture, Scalia again stops her short: "I really think you should focus not on the educational value—to make people hate bullfighting and things—but on quite the opposite, it seems to me, on the right, under the First Amendment, of people who like bullfighting, who like dogfighting, who like cockfighting, to present their side of the debate." All this talk of education is kind of stepping on the buzz of pure sport.
Alito sounds taken aback by all this. He wonders whether Congress has the power to regulate, say, a "pay-per-view, human sacrifice channel?" (It could happen.) And then the rest of the morning goes to flogging the life out of, alternately, the human-sacrifice-channel hypo and the Adolf Hitler hypo. Because in the parade of First Amendment horribles, there always, always has to be a Hitler there at the end, banging on the snare drum. At that end of it all, weary from the constitutional battle, is Scalia, poetically reminding his colleagues that "it's not up to the government to decide what are people's worst instincts."
Katyal ends his rebuttal by agreeing with Millett that since there is currently no robust consumer market for human sacrifice videos, Congress could probably not constitutionally ban Channel 115—the human-sacrifice channel. So at least everyone on both sides is agreed that the human-sacrifice channel is constitutional. And that's a relief.
As the lights go down, what's left of the animal-cruelty statute is a steaming heap of words. Don't let the miles of cool marble and plush velvet fool you. It's a jungle in here.
Disclosure: I am on the steering committees of both the Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for the Protection of Free Expression. Each filed an amicus brief on Stevens' side of this case.