Cruelty and free speech

If a person sells an image that depicts an actual — as opposed to simulated — act of animal cruelty, should he be subject to criminal prosecution?

That is a question the United States Supreme Court has agreed to decide.

The issue dates to 1999, when Congress passed a law in response to “crush videos” being bought by people with a fetish for watching women kill kittens and other small animals by stepping on them.

Authors of a House report wrote, “The cries and squeals of the animals, obviously in pain, can be heard on the videos.”

Congress’ bill to make the sale of animal-cruelty images illegal was signed into law by President Bill Clinton. Now the law is being challenged by a Virginia man who was convicted in 2005 of selling videos depicting actual scenes of pit bulls fighting each other and of fighting pigs.

His conviction was overturned by a federal appeals court, which ruled that although the act of animal cruelty is a crime, images “depicting” the act are protected under the First Amendment.

The court wrote that Americans selling videos they shot of bullfighting in Spain could be guilty of a crime under the law.

Our view is that the law should stand as written. There are rare forms of expression that are not protected by the First Amendment, and so far no court has given credence to extreme, hypothetical arguments.

An example is child pornography. The Supreme Court ruled in 1982 that such images are not constitutionally protected, and no one has been successful in arguing that the ruling should be overturned because parents depicted in a family video giving their baby a bath could be arrested.

It is a crime to inflict cruelty on animals, and it is absurd to state that profiting from the crime by selling images of its commission should be legal.

The solicitor general will defend the federal law on the grounds that “depictions of the intentional infliction of suffering on vulnerable creatures play no essential role in the expression of ideas.” We hope the Supreme Court agrees.