the federal law at issue punishes video and photo depictions of animal cruelty…

- the court of appeals held the law unconstitutional; it infringes too much on free speech

- target of the laws was “crush films,” a kind of porn in which women kill small animals with their feet – but the law spreads a much wider net than that

- There are very few categories of speech that are subject to pretty broad restriction by the the government: threats, obscenity, immediate incitement to violence, child pornography. This case asks the Supreme Court to carve out a new exception to the First Amendment – the first since 1982 (child porn) — for depictions of animal cruelty.

- People are always asking for new exceptions to the First Amendment for kinds of expression they feel are of such low value that it’s worth it: violence, sexism, blasphemy, hate speech, anti-Americanism, anti-war, offensive video games. The courts always refuse. It’s very dangerous to substitute a “low value” test for our current very strict, almost “least drastic means,” standard for limiting speech. There’s always something that someone considers more important than the First Amendment.

- Actually, “Obscenity” is the only category that is excepted based on the “low value” of the speech itself – and it’s been a real mess (remember “I know it when I see It”?). Even Justice Scalia says the test needs to be revisited.

- The law could be used to ban and punish things like films about bullfighting and horseracing, and it could even be used against animal rights groups like PETA who use these same photos and films to oppose animal cruelty, because, just like in obscenity, there is no way to write “context” into the law. And don’t think it wouldn’t happen – the racetracks, slaughterhouses, research labs, etc. that PETA protests would likely make complaints about PETA for violating this law.

- Just about everyone agrees that protecting animals is important. The government can find other ways to prevent and punish animal cruelty. But this law goes way too far.
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