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Dogfight Video Tests Limits of Free Speech

October 6, 2009 at 12:00 AM EDT
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The Supreme Court heard arguments Tuesday on whether videos of illegal dogfights are protected speech. Marcia Coyle offers insight.
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JUDY WOODRUFF: The justices took up a free-speech case involving the sale of dogfight videos. Here to walk us through today’s arguments is NewsHour regular Marcia Coyle of the National Law Journal.

Marcia, two days in a row. Good to have you back with us.

MARCIA COYLE, National Law Journal: Nice to see you again, Judy.

JUDY WOODRUFF: So how is dogfighting connected to free speech?

MARCIA COYLE: Well, Congress in 1999 passed a law making it a crime to create, possess, or sell videos or other images of animal cruelty. Robert Stevens, a Virginia resident, was convicted in 2004 of selling videos of dogfighting.

He challenged his conviction, he appealed it in court, and he won his appeal. A lower court found that this 1990 law was unconstitutional, that it violated the First Amendment’s free speech guarantees.

JUDY WOODRUFF: So this has become a major test of speech?

MARCIA COYLE: It is. As you know, Judy, the First Amendment doesn’t protect all speech. Over the years, the Supreme Court has recognized certain categories of unprotected speech, like obscenity. And the last time it recognized a special category was back in 1982, when it held that depictions of children engaged in sexual acts — this is child pornography — violated the First Amendment.

So now the government, the Obama administration has come to the court asking it to save this 1999 statute, that it is constitutional under the First Amendment, that it’s much like the child pornography category.

A test on free speech

JUDY WOODRUFF: So what were the main arguments that the government made here?

MARCIA COYLE: Deputy Solicitor General Neal Katyal argued for the administration. And he said that, in effect, you know, this statute is not targeting speech or the content of the videos. It's going after the underlying production of the video. Congress was trying to dry up the market for animal cruelty by punishing the sale of the videos.

But he immediately ran into questions from the justices. This was a very rapid-fire argument. Justice Scalia said, in effect, you can't separate the means from the end. You're targeting communications.

And Justice Sotomayor raised a question: How can you tell the difference between these videos on dogfighting and a noted documentary on the horrors of dogfighting?

The justices were concerned about, how broad is this statute? Is it going to reach what is protected speech?

Mr. Katyal countered that this is a narrowly drafted statute because it contains exceptions for any videos or images that have social, artistic, scientific value.

JUDY WOODRUFF: That there are exceptions...

MARCIA COYLE: Yes.

JUDY WOODRUFF: ... that are already built into the law. And by the way, we should remind everybody, dogfighting itself is illegal in all 50 states. This is just about the portrayal of dogfighting.

MARCIA COYLE: That's exactly it.

JUDY WOODRUFF: And so, Marcia, what about the arguments on the other side?

MARCIA COYLE: Patricia Millett represented Mr. Stevens today. And she argued that you can't prohibit speech just because you find it offensive. And she said these videos were not like child pornography, where in child pornography, the actual video and image is entwined with the criminal act.

If you eliminated all videos of dogfighting, she said, dogfighting won't end. She was questioned really vigorously by Justice Alito who said, well, you know, what if there are people who want to see live human sacrifices on the human sacrifice channel? Could Congress prohibit that?

And, again, she repeated that you can't prohibit speech just because you find it offensive. There has to be causation here. The video has to cause the harm. And he came back again and said, well, what about ethnic cleansing on the ethnic cleansing channel? And, again, she said you can't just prohibit speech because it's offensive.

And Justice Scalia interjected at this point, I think on her side, saying, well, if you let this one in, what's going to be the next base instinct? The government doesn't have a role in deciding what are our worst instincts.

Disparate groups unite

JUDY WOODRUFF: I know you say, Marcia, that you never like to predict how a case is going to come out based on what the justices ask or say, but did you get any sense from the number of questions and the content of the questions today?

MARCIA COYLE: It was my sense that quite a few justices have problems with how broad this statute is. And as I said, Judy, it's been 27 years since they've carved out another category of unprotected speech. So I think they're going to go very carefully here.

JUDY WOODRUFF: There's an interesting alignment of groups on each side. On the government side, you had the animal -- the people who were against animal cruelty, the Humane Society and others. And then, for Mr. Stevens, you had a combination of free speech advocates and then the NRA and other groups.

MARCIA COYLE: There's a lot of concern on both sides about sort of the slippery slope here, if the court rules one way or the other. The animal rights groups, like the Humane Society, supporting the government fear that, if this statute is struck down, that you are going to see an increase in animal cruelty and you'll see an increase in what really triggered this 1999 law, which was Congress's concern about so-called crush videos. And these are videos that indulge a sexual fetish of scantily clad women in bare feet or high heels stomping on small animals. These groups believe that the law has really helped eliminate or diminish the market for this kind of animal cruelty.

The other groups that are supporting Mr. Stevens, civil rights groups, First Amendment advocates, media groups, fear that if the law is found to be constitutional that you're going to see more categories of unprotected speech, that you might even endanger something like -- I think there's a shark show on the Discovery Channel, that that might fall within the ambit of this kind of a law.

JUDY WOODRUFF: A real clash of value systems in a way. You've got the animal rights' argument on one side and the free speech on the other.

MARCIA COYLE: Absolutely. And if the court does find a new category of unprotected speech, that will be a major decision.

JUDY WOODRUFF: Marcia Coyle, National Law Journal, thank you. Always good to have you with us.

MARCIA COYLE: My pleasure, Judy.