It's a hard world for the little things

I'm a staunch advocate of free speech rights. But cases like the ones Adam Liptak writes about today remind me that I have a hard time being an absolutist.

A decade ago, Congress decided it was time to address what a House report called “a very specific sexual fetish.” There are people, it turns out, who take pleasure from watching videos of small animals being crushed.

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” the report said. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”

So, in 1999, Congress made it a crime to sell “crush videos” and almost all other depictions of unlawful cruelty to animals.

The conduct itself is disgusting, of course. But the law does not criminalize the cruelty, which was already illegal in all 50 states, only its depiction. By making such expressions illegal — adding a new category of speech to the very few that are entirely unprotected under the First Amendment — the law raised profound constitutional questions about whether and when the government can decide that some sorts of information have no social value at all.

The Supreme Court is likely to address those questions soon in the case of Robert J. Stevens, a Virginia man sentenced to 37 months in prison under the law for selling videos of dogfights.

Seems the dogfighting video was mainly old footage of Japanese dogfights, where the practice is apparently legal. But the "crushing" videos seem a very different issue altogether. While animal cruelty is illegal, it is very difficult to investigate and prosecute the wanton killing of small animals for the purpose of sexual gratification. Hell, I don't like mouse traps, but I've used them. If the selling of the videos is illegal, they could be used as evidence against the people engaging in these horrible acts.

And it seems like the law was working.

Professor Volokh, who said he believed the law was unconstitutional, offered a prediction about its fate in the Supreme Court. “I think they’re going to strike it down,” he said. “It’s going to be at least 6-3, perhaps even unanimous.”

But even free speech absolutists might find their beliefs tested by the “crush videos” that initially prompted the law.

Before the 1999 law was enacted, according to the Humane Society of the United States, there were some 2,000 crush videos available in the marketplace, for $15 to $300 each. After 1999, said Jonathan R. Lovvorn, chief counsel of the Humane Society, that market all but disappeared.

But since July, Mr. Lovvorn said, crush videos have “popped back up on the Internet as a result of the Third Circuit’s ruling.”

Mr. Lovvorn provided a reporter with links to two examples, one involving a kitten, the other a puppy. May you never see them.