WASHINGTON — Could the government outlaw a hypothetical "Human Sacrifice Channel" on cable TV?
That question became the focus of a Supreme Court argument Tuesday on the reach of the 1st Amendment and whether Congress can outlaw videos showing dogs fighting or other small animals being tortured and killed.
Last year, a federal appeals court, citing freedom of speech, struck down a law against selling videos with scenes of animal cruelty.
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.
"It's not up to the government to tell us what are our worst instincts," Scalia said.
He repeatedly cited Adolf Hitler and his policies of extermination, asking, "Can you keep him off the screen" just because his deeds were vile?
Justice Samuel A. Alito Jr. garnered the attention of his colleagues with a series of questions on whether videos portraying humans being killed would be protected as free speech.
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.
A lawyer defending a Virginia man who sold dog-fighting videos said she wasn't sure.
"The fact conduct is repulsive or offensive does not mean we automatically ban the speech," said Patricia Millett, the lawyer for Robert Stevens.
She said the 1st Amendment usually protects speech and expression, even if the underlying conduct is ugly or illegal. She said the government should work to stop the illegal acts rather than make it a crime to show the illegal acts.
