In April, the Supreme Court struck down a law making it a crime to sell depictions of cruelty to animals. The 8-1 ruling, which reversed a Virginia man's conviction for selling dogfighting videos, was significant because the court was rejecting the federal government's request that it declare a whole category of expression outside the protection of the 1st Amendment.
Now the House has overwhelmingly passed a narrower ban on the sale and distribution of so-called crush videos that raises the same constitutional problem. If the bill is approved by the Senate and signed by President Obama, the court will confront the uncomfortable task of invalidating a law rewritten to comply with one of its decisions. But it shouldn't shrink from that responsibility.
Like the earlier law, the Prevention of Interstate Commerce in Animal Crush Videos Act of 2010, sponsored by Rep. Elton Gallegly (R-Simi Valley), is motivated by disgust over videos showing women stomping on or torturing small animals, depictions that appeal to people with a particular sexual fetish. The difference is that the new bill focuses only on crush videos, and specifies that it isn't targeting depictions of hunting, trapping, fishing or "veterinary or agricultural husbandry practices."
Crush videos are appalling, and the conduct they depict is, and should be, illegal. But banning the sale of the videos blurs a distinction between conduct and speech that is at the heart of the 1st Amendment. Granted, the court has ruled that some forms of expression — notably obscenity and child pornography — aren't protected by the Constitution. Nevertheless, as Chief Justice John G. Roberts Jr. noted in the April decision, if there are any other categories of speech unworthy of protection, "there is no evidence that 'depictions of animal cruelty' is among them." The same logic applies to the subset of animal cruelty known as crush videos.
The new legislation attempts to get around Roberts' conclusion by defining crush videos as obscene because they "appeal to the prurient interest." But if crush videos can be classified as obscene simply because a minuscule number of people find them sexually arousing, so can depictions of all sorts of behavior — including fictional violence.
The court has itself to blame for this legislation, because Roberts' majority opinion emphasized that the law was "overbroad" and included the statement that "we … need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional." Yet Roberts' own reasoning suggests that narrowing the prohibition doesn't solve the constitutional problem of prosecuting depictions of violence instead of the real thing.