Witness the American deputy solicitor general in his natural habitat—the Supreme Court. As Neal Katyal roams softly across the cool marble chamber, he has no idea what awaits him. He is here to protect his tribe—the U.S. government—which, in 1999, passed a statute making it a crime to create, sell, or possess "any visual or auditory depiction" of "animal cruelty" if the act of cruelty is itself illegal under either federal law or the law of the state in which the depiction occurred.
The animal-torture statute was originally intended to stop the scourge of so-called "crush videos." Crush videos reflect a highly weird little sexual fetish involving women in high heel shoes brutally stomping small woodland creatures to death. But as Katyal blinks into the bright sunlight of the Supreme Court chamber this morning, he will find himself fighting for his very survival.
This dispatch is not for the faint of heart ...
The case before the court today, U.S. v. Stevens, involves the criminal prosecution of Robert Stevens, convicted and sentenced to three-plus years in prison for making videos that included footage of pit bulls mauling one another and the occasional boar. (Although he had nothing to do with the actual dogfights, Stevens' sentence was 14 months longer than Michael Vick's term for running a dogfighting ring). The 3rd Circuit Court of Appeals set aside Stevens' conviction and found the whole statute unconstitutional.
As Katyal begins to explain that the statute is actually a "narrowly targeted restriction against certain depictions of actual animal cruelty," there is a soft rustling sound to his right. In a flash of black robes, Justice Sonia Sotomayor leaps down at Katyal to ask what evidence he has of a "robust market" in animal-cruelty videos. If "crush" videos were a problem for Congress, why, in this case, was a man prosecuted and sentenced for producing and selling a film about pit bulls?
Soon enough, the leader of the pride makes his way to the front of the pack. Chief Justice John Roberts toys with his prey at first, asking Katyal to state in one sentence his test for deciding which categories of speech are unprotected by the First Amendment. Katyal likens the depictions of animal cruelty covered under the statute to child pornography (roped off as a whole class of speech that is unprotected under the First Amendment). But the court doesn't go around roping off whole classes of unprotected speech willy-nilly. So Katyal argues that the statute is not too broad because it exempts from prosecution any depictions of animal cruelty that have "religious, political, scientific, educational, journalistic, historical, or artistic value."
But now Katyal will have to reckon with the Hunter. It will not be pretty. Justice Antonin Scalia practically leaps at the back of his neck, asking, "But what if I am an aficionado of bullfights, and I think, contrary to the animal-cruelty people, I think they ennoble both beast and man, and I want to persuade people that bullfights are terrific and we should have them? I would not be able to market videos showing people how exciting a bullfight is. Right?"
Katyal tries to warn Scalia that "we should be careful about that endless stream of fanciful hypotheticals," but it's too late for that. We are about to witness a man torn limb from limb by justices wielding razor-sharp hypotheticals. When Katyal notes that "Spanish bullfights are the paradigmatic case of what is educational and artistic and the like," Scalia bears down ever harder: "Wait. I don't understand that. Any depiction of bullfighting is educational? ... And that is true because Congress said so? ... Well, I guess a dogfight is educational, too."
Justice Stephen Breyer, who has been waiting, now pounces on the injured Katyal. He asks how prosecutors are supposed to evaluate the "religious, political, scientific, educational, journalistic, historical, or artistic value" of "bullfighting, sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and ... stuffing geese for pâte de foie gras?"
And then Ruth Bader Ginsburg moves in and takes a chomp. "How about cockfighting?" she asks. "What is the difference between bullfighting, cockfighting, and dog fighting?" Justice John Paul Stevens, sporting his camouflage bow tie jumps in next. He, too, has a hypo, and he isn't afraid to use it: "And what about hunting with a bow and arrow out of season?"
Katyal begins to look wildly around him. He is poised, yes. But Scalia must smell his fear, asking why the statute uses the unambiguous word kill if it's only intending to criminalize animal cruelty. And then Breyer pounces again, asking why Congress couldn't just "write a statute that actually aims at those frightful things that it was trying to prohibit?" Why, he adds, couldn't Congress "write a statute that does not force the courts into the work of interpreting these very vague words to prevent the statute from being held unconstitutional?"
Ginsburg points out that dogfighting is not illegal in Japan, where some of Stevens' footage was filmed. Katyal replies that "it's often very hard to figure out where the underlying material is made. It doesn't have a GPS component."