Witness the American deputy solicitor general in his natural habitat—the Supreme Court. As Neal Katyal roams softly across the cool marble chamber, he has no idea what awaits him. He is here to protect his tribe—the U.S. government—which, in 1999, passed a statute making it a crime to create, sell, or possess "any visual or auditory depiction" of "animal cruelty" if the act of cruelty is itself illegal under either federal law or the law of the state in which the depiction occurred.
The animal-torture statute was originally intended to stop the scourge of so-called "crush videos." Crush videos reflect a highly weird little sexual fetish involving women in high heel shoes brutally stomping small woodland creatures to death. But as Katyal blinks into the bright sunlight of the Supreme Court chamber this morning, he will find himself fighting for his very survival.
This dispatch is not for the faint of heart ...
The case before the court today, U.S. v. Stevens, involves the criminal prosecution of Robert Stevens, convicted and sentenced to three-plus years in prison for making videos that included footage of pit bulls mauling one another and the occasional boar. (Although he had nothing to do with the actual dogfights, Stevens' sentence was 14 months longer than Michael Vick's term for running a dogfighting ring). The 3rd Circuit Court of Appeals set aside Stevens' conviction and found the whole statute unconstitutional.
As Katyal begins to explain that the statute is actually a "narrowly targeted restriction against certain depictions of actual animal cruelty," there is a soft rustling sound to his right. In a flash of black robes, Justice Sonia Sotomayor leaps down at Katyal to ask what evidence he has of a "robust market" in animal-cruelty videos. If "crush" videos were a problem for Congress, why, in this case, was a man prosecuted and sentenced for producing and selling a film about pit bulls?
Soon enough, the leader of the pride makes his way to the front of the pack. Chief Justice John Roberts toys with his prey at first, asking Katyal to state in one sentence his test for deciding which categories of speech are unprotected by the First Amendment. Katyal likens the depictions of animal cruelty covered under the statute to child pornography (roped off as a whole class of speech that is unprotected under the First Amendment). But the court doesn't go around roping off whole classes of unprotected speech willy-nilly. So Katyal argues that the statute is not too broad because it exempts from prosecution any depictions of animal cruelty that have "religious, political, scientific, educational, journalistic, historical, or artistic value."
But now Katyal will have to reckon with the Hunter. It will not be pretty. Justice Antonin Scalia practically leaps at the back of his neck, asking, "But what if I am an aficionado of bullfights, and I think, contrary to the animal-cruelty people, I think they ennoble both beast and man, and I want to persuade people that bullfights are terrific and we should have them? I would not be able to market videos showing people how exciting a bullfight is. Right?"
Katyal tries to warn Scalia that "we should be careful about that endless stream of fanciful hypotheticals," but it's too late for that. We are about to witness a man torn limb from limb by justices wielding razor-sharp hypotheticals. When Katyal notes that "Spanish bullfights are the paradigmatic case of what is educational and artistic and the like," Scalia bears down ever harder: "Wait. I don't understand that. Any depiction of bullfighting is educational? ... And that is true because Congress said so? ... Well, I guess a dogfight is educational, too."
Justice Stephen Breyer, who has been waiting, now pounces on the injured Katyal. He asks how prosecutors are supposed to evaluate the "religious, political, scientific, educational, journalistic, historical, or artistic value" of "bullfighting, sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and ... stuffing geese for pâte de foie gras?"
And then Ruth Bader Ginsburg moves in and takes a chomp. "How about cockfighting?" she asks. "What is the difference between bullfighting, cockfighting, and dog fighting?" Justice John Paul Stevens, sporting his camouflage bow tie jumps in next. He, too, has a hypo, and he isn't afraid to use it: "And what about hunting with a bow and arrow out of season?"
Katyal begins to look wildly around him. He is poised, yes. But Scalia must smell his fear, asking why the statute uses the unambiguous word kill if it's only intending to criminalize animal cruelty. And then Breyer pounces again, asking why Congress couldn't just "write a statute that actually aims at those frightful things that it was trying to prohibit?" Why, he adds, couldn't Congress "write a statute that does not force the courts into the work of interpreting these very vague words to prevent the statute from being held unconstitutional?"
Ginsburg points out that dogfighting is not illegal in Japan, where some of Stevens' footage was filmed. Katyal replies that "it's often very hard to figure out where the underlying material is made. It doesn't have a GPS component."
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.