Finding oneself in agreement with Supreme Court Justice Samuel Alito can be an alarming development in itself, but it’s hard not to agree at least in part with his dissenting statement in yesterday’s 8-to-1 Supreme Court decision.
Justice Alito wrote, in his dissension, that the now-struck statute was enacted “not to suppress speech, but to prevent horrific acts of animal cruelty — and in particular, the creation and commercial exploitation of ‘crush videos,’ a form of depraved entertainment that has no social value.” I’ve never watched a crush video, and certainly have no plans to do so. It is at least heartening to know that Justice Alito has this much heart. (It’s not been evident in some of his earlier rulings.)
The specific case that brought about yesterday’s ruling, exploitation of pit bull fights through sales of dog fight videos, is about a different form of cruelty to animals. Stepping back a little it’s possible to see what the court was protecting: not any right to commit barbaric acts, but too-broad application of First Amendment rights.
Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said that the law had created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”
The decision left open the possibility that Congress could enact a narrower law that would pass constitutional muster. But the existing law, Chief Justice Roberts wrote, covered too much speech protected by the First Amendment.
Hopefully, a new and narrower law will come soon.
When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”
The law, said Wayne Pacelle, the president of the Humane Society of the United States, “almost immediately dried up the crush video industry.”
But prosecutions under the law appear to have been pursued only against people accused of trafficking in dogfighting videos.
Chief Justice Roberts concluded his majority opinion by suggesting that a more focused law “limited to crush videos and other depictions of extreme animal cruelty” might survive First Amendment scrutiny.
Mr. Pacelle, of the Humane Society, called for a legislative response to Tuesday’s ruling. “Congress should within a week introduce narrowly crafted legislation,” he said, “to deal with animal crush videos and illegal animal fighting activities.”
Some years ago I was approached to do a story on cockfighting, then legal in a number of states. I knew the wife of the man who suggested the piece, the purpose of which was to explain what a fine and macho “sport” this was. Utterly amazed at the names of those cockfighting enthusiasts whom he had lined up for me to interview (after the fight) — and no way was I going to attend such an event — I sought out a number of them and asked for public comment on why cockfighting should be supported. The article, exposing a number of otherwise respectable men of the local community, brought widespread condemnation upon my head for spreading such trash. Nobody seemed to notice the names behind the trash. I thought it would embarrass the spokesmen. Sometimes free speech protects those who are beyond embarrassment.
I, for one, cannot quite understand why Robert Stevens, convicted of selling dog-fighting videos and now acquitted, is not embarrassed to have his picture and his business practices in the morning paper.