The U.S. Supreme Court pondered the legality of a "Human Sacrifices Channel" and pay-per-view gladiator matches as they heard arguments Tuesday on a federal law that bans animal-cruelty videos.
The First Amendment case is being closely followed by documentary filmmakers.
The Obama adminstration’s lawyer defended Congress’ "crush video" law, which was struck down last year, saying it had not had a chilling effect on free speech.
The law is used only in campaigns against "crush" videos — in which women in stilletos step on small animals — and dogfighting films, he said. The concept is similar to child pornography bans, he added.
The attorney for Robert Stevens, convicted under the 1999 act, said the government should focus on the cruelty itself — not on videos.
Stevens, a Virginia man, was convicted in 2005 of selling videos that contained graphic scenes of pitbulls fighting. Stevens has nothing to do with the dogfights themselves, he says, but included footage in his film "Catch Dogs and Country Living" (pictured).
The justices wondered where the line would be drawn, using bullfighting and hunting videos as examples of generally accepted documentary content that could be prohibited under such a law.
The U.S. attorney, Neal Katyal, replied that the prosecutors have "10 years of experience under the statute, and we haven’t seen those things being chilled." (Crush videos have largely disappeared since Congress passed the law.)
Justice Stephen Breyer wondered about the ambiguities of a law restricting animal-cruelty videos: "(Filmmakers and the media) have to know what to do to avoid the risk of being prosecuted … They won’t know whether or not they can make this particular film, picture or other."
"You can create a lot of First Amendment horribles," Justice Antonin Scalia said in response to the court’s sometimes over-the-top speculations about prohibited behaviors. "What about a new Adolf Hitler? Can we censor any depiction of that new Adolf Hitler and the horrible things that he is proposing, including extermination of a race? Is that proscribable under the First Amendment?
"It’s not up to the government to tell us what are our worst instincts," Scalia said.
The justices also speculated about the importation of violent content from outside the U.S.’ jurisdiction, using fanciful examples such as pay-per-view gladiator matches or human sacrifices.
Drawing some laughter, Justice Samuel Alito Jr. asked, "What about people who like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay-per-view, you know, on the Human Sacrifice Channel."
"Could a theater have a live broadcast of a pitbull fight in Japan and charge $10?" Justice Anthony Kennedy asked. "And let’s add the hypothetical fact that a lot of the revenue goes back to Japan and promotes more pitbull fighting. Could a properly drawn statute prohibit that?"
Stevens’ attorney argued: "If you throw away every dogfighting video in the country tomorrow, dogfighting will continue … Unlike child pornography, people need to see images to understand what’s going on with animals, and to make these important decisions and engage in these important debates that our society is having."
The conversation also touched on so-called snuff films, with Justice Ruth Bader Ginsburg wondering if they, too, would be banned by Congress.