It was a day of wild hypotheticals Tuesday, as the U.S. Supreme Court reached far and wide for help in deciding whether a federal law that makes it a crime to depict animal cruelty violates the First Amendment.
By the end of the riveting hour of argument in United States v. Stevens, it seemed likely that a sizable majority of the Court was ready to strike down the law as too broad or too vague.
"Certainly the tone of the argument would suggest that the statute is in trouble," said Andrew Tauber of Mayer Brown, who attended the argument and filed a brief against the law for the National Coalition Against Censorship. The law sweeps so broadly, Tauber added, that "it takes very little imagination to come up with dozens of hypotheticals" of depictions that could be vulnerable to prosecution but should be protected by the First Amendment.
That's just what the Court did, for much of the hour.
What if, Justice Antonin Scalia said, "I am an aficionado of bullfighting" who wants to spread the word about how it ennobles "both beast and man?" Would it be a crime to use a video to get that argument across?
The urbane Justice Stephen Breyer asked another one: would a video depicting "stuffing geese for pate de foie gras" violate the law?
The bow-tied Justice John Paul Stevens posited videos of "hunting with a bow and arrow out of season," when it would be illegal.
Chief Justice John Roberts Jr. asked if a law aimed at depiction of cruelty to humans -- not animals -- would pass constitutional muster.
Could Congress ban a video depicting modern-day Roman gladiators fighting to the death, asked Justice Samuel Alito Jr. Or what about a pay-per-view "Human Sacrifice Channel?" he asked.
Early in the argument, Deputy Solicitor General Neal Katyal sought to tamp down the "endless stream of fanciful hypotheticals" by asking whether there is a "realistic danger" that the hypos might come true.
In the 10 years the law has been in effect, Katyal said, no bullfighting videos have been prosecuted, nor would they be, given the legislative intent of Congress. The law also exempts depictions that are educational, historic or journalistic, but Breyer said the words were so vague that people won't "know what to do to avoid the risk of being prosecuted."
Katyal's argument drew an angry comment from Justice Anthony Kennedy, in effect stating that the Court has never found a law restricting speech to be constitutionally acceptable just because prosecutors have so far used restraint. Justices also seemed not to like the idea of leaving the determination of whether certain videos fit or do not fit the exceptions in the hands of prosecutors or jurors.
Kennedy's comment seemed to be a death knell for Katyal's argument, but he kept at it. He asserted that the law is constitutional because it, like laws against child pornography, is aimed not at expression but at "trying to dry up an underlying market," in this case for fetish and dogfighting videos that harm animals in their production. He said the law was successful in diminishing production of such videos until the law was struck down by the 3rd U.S. Circuit Court of Appeals.
After Katyal sat down, it seemed that his adversary, Patricia Millett of Akin Gump Strauss Hauer & Feld, would have an easy task ahead. Millett represented Robert Stevens, a Pennsylvania man who was the first person prosecuted under the law, targeted for a series of dogfighting videos -- videos that he said were documentaries that did not foster or approve of dogfighting.
Millett did, in fact, face fewer tough questions than Katyal, as she acknowledged that a "properly drawn statute," aimed only at fetish videos that appeal to prurient interest in seeing animals harmed, might pass constitutional muster. But she said the Court should not rewrite the law for Congress. "Congress has a job to write with a scalpel and not a buzzsaw in the First Amendment area," she said.
Alito was the only justice who repeatedly challenged her to recognize that in the "real world," many of the hypotheticals raised by her and other justices would not in fact be prosecuted.
He also pressed Millett on whether, under her reading of the First Amendment, a cable channel devoted to depictions of human sacrifice could be outlawed. Millett hedged and seemed briefly in trouble, but Katyal in his rebuttal said such a channel would be hard to ban under the First Amendment, an answer that seemed to help his adversary.