Dogfighting videos = free speech?

So about a week ago, I started reading media sources and a variety of dog-related forums about how the Supreme Court was going to hear a case about whether creating and selling dogfighting videos was illegal. Well, I finally read the transcripts of oral argument yesterday, and as it turns out, the case isn't really that simple.

As background, Stevens, the guy who was convicted was found guilty because he was selling videos that depicted dogfighting and hogcatching. He was charged with violating a federal statute that made it illegal to sell depictions of illegal animal cruelty across state lines. The statute doesn’t apply to videos that have some redeeming value, for example, for historical or educational purposes.

The only issue that's before the Supreme Court was whether that statute violates the First Amendment. The main concerns the Court had were whether the statute is overbroad and whether Congress overstepped its bounds in potentially criminalizing behavior that isn’t criminal.

The Justices peppered hypotheticals at the lawyers to figure out what Congressional limits were on regulating speech: whether Congress could ban a Human Sacrifice Channel where we could buy pay per view to watch sacrifices taking place in some imaginary land where sacrifices were legal. (By the way, everyone seemed to agree that Congress probably couldn’t ban it.) The Court wondered whether the law would criminalize the sale of videos showing off-season hunting or fishing. Or bullfighting videos that were filmed in Spain, where bullfighting is legal. And our newest Justice asked wondered about the possibility of whether the documentary, Off the Chain, would be included under this statute as it’s written because it contained gruesome footage of dogfighting.

I've never been great at predicting which way the Supreme Court is going to come down on cases before it, but I do know that both parties (and the Justices) agreed that dogfighting and animal cruelty is reprehensible. And illegal. Even if the Court decides to throw out the entire statute as unconstitutional, it doesn't mean that it is giving the sale of dogfighting videos a green light. One of the points made at argument was that if legislators intended to make the sale of dogfighting videos illegal because it promotes and encourages animal cruelty and helps cops find dogfighters, they need to draft a more narrow law that doesn't encompass other potentially "innocent" behavior. The only issue the Court is considering is whether the statute is invalid as its currently written because it hinders speech.

No more. No less.

It doesn't even get to the issue of whether the law is constitutional as it’s applied to Stevens. If the Court says the law is constitutional, it will probably remand it back to the lower courts to let them figure it out first.

So what now? If the court throws out the statute, our job is to get on the horn fast and tell our congresspeople that we want them to go back to the drawing board and write a better law. - Christine Allen