An increasing sensitivity to the suffering of animals has been reflected both in public attitudes and in the law. Michael Vick's involvement in an illegal dogfighting ring provoked appropriate public outrage and resulted in a 19-month prison stay for the football star. Movie credits assure the audience that "no animals were harmed in the making of this film."
Greater protection for animals is an important objective, but, as with other desirable goals, it can be pursued overzealously and at the cost of constitutional rights. That's the case with an overly sweeping federal law criminalizing the creation, possession or sale of a "depiction of animal cruelty." Next month, a lawyer for the Obama administration will go before the U.S. Supreme Court to ask it to uphold the law. The court should decline the invitation.
The 1999 law was aimed at repellent and fetishistic "crush videos" that portray women stamping on animals, but its language is much broader. It was declared unconstitutional last year by a federal appeals court in Philadelphia, which overturned the conviction of Robert Stevens, a Virginia pit bull breeder. Stevens had advertised videos showing dogfights, along with an instructional video on using pit bulls to hunt boar. That recording showed a dog attacking a domestic farm pig.
The U.S. 3rd Circuit Court of Appeals found no fault with laws in all 50 states punishing animal cruelty in general and dogfighting in particular. The problem with the law under which Stevens was convicted, Judge D. Brooks Smith wrote for the court, was that it criminalized not conduct but speech. If it were upheld, he noted, it would be the first time in a quarter of a century that the Supreme Court "recognized a new category of speech that is unprotected by the 1st Amendment."
In that 1982 case, Smith pointed out, the high court ruled that child pornography depicting actual children lacked constitutional protection. But he added that when the court allowed restrictions based on the content of speech, "the interest has -- without exception -- related to the well-being of human beings, not animals." Even then, the court has been reluctant to go too far in suppressing even offensive speech. For example, 20 years after it ruled that child pornography involving actual children could be outlawed, it struck down a law against so-called virtual child pornography featuring computer-generated images and the use of adult actors to portray children.
In upholding the appeals court decision, the Supreme Court would not be hobbling enforcement of laws against animal cruelty. Nowhere in Smith's opinion is there any suggestion that videos of dogfighting or other acts of cruelty couldn't be used as evidence to apprehend and prosecute individuals engaged in these acts.
The difference between acts and expression can sometimes be hard to pinpoint, but it is a theme that runs through the greatest 1st Amendment decisions of the Supreme Court. The court mostly has held firm to that distinction, even while acknowledging that offensive statements and images might lead some impressionable people to engage in unlawful acts. It shouldn't depart from that tradition in this case.