Dog Fighting Videos and the First Amendment

By Caleb Groos on October 06, 2009 | Last updated on March 21, 2019

Today the Supreme Court heard arguments in a case over whether a federal law criminalizing videos that depict animal cruelty violates the First Amendment.

For background on the case at hand (US v. Stevens), see this write-up in the Christian Science Monitor. To summarize, a Virginia man was convicted of selling dog fighting videos from Japan, where dog fighting is legal. An appeals court struck down the law as an unconstitutional violation of the First Amendment.

As described by the LA Times, today's questioning included a hypothetical posed by Justice Samuel Alito asking whether Congress could pass a law forbidding the "Human Sacrifice Channel." We won't know the court's decision (whether to narrow the law or strike it down entirely) until later in the term.

As detailed by NPR, the law at issue was passed 10 years ago with the intent of punishing the purveyors of "crush videos" -- videos of small animals getting crushed by women's bare feet or women in high heels.

There are exceptions to First Amendment protections. Obscenity, child pornography, and certain types of incitement do not get First Amendment protection. Additionally, other types of speech (like defamatory speech) get less than full First Amendment protection.

"Obscene" for First Amendment purposes means that:

  • the "average person applying contemporary community standards" would find that the work, as a whole, appeals to "the prurient interest;"
  • the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by an applicable state law; and
  • the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

If this definition seems highly subjective and vague, that's because it is. However, the dog fighting videos at issue in the current case cannot be legally "obscene" because they do not depict sexual conduct.

The Supreme Court has not carved out a new exception from First Amendment protection since it did so for child pornography in 1982.

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