Only One Justice Votes Against Animal Cruelty Videos.

Update April 20, 2010: In an 8-1 opinion with only Justice Samuel J. Alito dissenting, the U.S. Supreme Court struck down the federal law prohibiting the creation, sale or possession of animal crush videos and other depictions of animal cruelty for commercial gain. 18 U.S.C. §48.

The films, photos and other depictions that are banned under this law show a living animal that is "intentionally maimed, mutilated, tortured, wounded, or killed".  The law does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. The law only applies to depictions of illegal conduct.

In throwing out the law, the justices overturned the conviction of Robert Stevens who sold dog fighting videos. (Read more about his conviction in Animal Law Coalition's earlier report below.)  
In an opinion authored by Chief Justice John Roberts, the Court rejected the idea that depictions of animal cruelty should be regarded as unprotected speech, much like obscenity, child pornography or words that incite violence or are integral to criminal activities.

The Majority Sides with the NRA
Instead, the Court found the law is unconstitutionally overbroad, an infringement of the First Amendment.  The Court worried, for example, that depiction of the "humane slaughter" of a stolen cow or hunting magazines with photos of animals killed during hunts would now be illegal.
Citing the  National Rifle Association, the Court noted "hunting magazines alone account for $135 million in annual retail sales".  Citing the Safari Club International and the Congressional Sportsmen's Foundation, the Court said "many popular [hunting] videos ‘have primarily entertainment value' and are designed to ‘entertai[n] the viewer, marke[t] hunting equipment, or increas[e] the hunting community.'"  Again citing the National Rifle Association, the Court added "much of the content of hunting media . . . is merely recreational in nature." Certainly not to the animals being trapped, chased and shot or skinned.
The Court also pointed out that animal cruelty is for the most part based on state laws.  State laws regarding animal cruelty, hunting, treatment of livestock and wildlife vary such that it would be very difficult to know what depictions would be illegal from state to state. The Court noted there is no good way to tell what has "serious" value as news, for example, and which depictions are simply animal cruelty depicted for commercial gain. A bull fight in Spain covered by an internet blogger v. a dog fight depicted in a video sold over the internet.

Justice Alito's dissent
Justice Alito disagreed, however. Justice Alito said, " The Court strikes down in its entirety a valuable statute, 18 U. S. C. §48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty-in particular, the creation and commercial exploitation of ‘crush videos,' a form of depraved entertainment that has no social value. The Court's approach, which has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted."
kittensJustice Alito rejected that the First Amendment protects violent, criminal conduct.

Justice Alito pointed out the statute does not apply to depictions of hunting either because it is legal in all 50 states or it falls within the exemption. The same is true of "humane slaughter". Regardless,said, Justice Alito, the law is not "substantially overbroad".   

Justice Alito offered a reminder of the purpose of this law, describing a crush video submitted to the Court as evidence: "[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten's eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal's head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone."

The justice stated, "It is undisputed that the conduct depicted in crush videos may constitutionally be 

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