WASHINGTON (CN) - In a case that came preloaded with publicity, the Supreme Court heard arguments before a packed courtroom Tuesday on whether the ban on dog fighting videos violates the First Amendment.
Congress passed law in 1999 to outlaw dominatrix videos where women torture small animals with their bare feet or while wearing heels.
But the statute here has been applied to more than just crush videos. It was loosely written to bar the recording where "a living animal is intentionally maimed, mutilated, tortured, wounded, or killed."
"Or killed!" Justice Antonin Scalia exclaimed, noting that humans kill animals for food all the time.
Justice Stephen Breyer appeared concerned that the rule could be interpreted to ban depictions of hunting or even the making of fois gras.
The measure exempts the recordings for religious, political, scientific, educational, historic, journalistic, or artistic value.
Patricia Millet from Akin Gump Strauss Hauer & Feld, represented Robert Stevens, who sold dog fighting videos. She argued that the government is simply banning something it doesn't like. "If it's just that we don't like the content, outside obscenity, Congress doesn't get to ban it," she said.
She also said that the videos were sold to demonstrate the cruelty of dog fighting, which might put it under political exemption.
Deputy Solicitor General Neal Katyal, who represented the United States, disagreed that the law was simply censorship, and argued that the ban on dogfight recordings helps to dry up the market. He said that stopping the actual dog fights has proven too difficult.
Stevens sold three videos to undercover police of dog fights that had been filmed where it was legal. He was found guilty by the district court, but the Third Circuit concluded that the videos were protected speech and set aside the conviction.
The issue now sits before the Supreme Court.
Katyal, who argued in favor of the ban on dog fighting videos, compared the depiction of dog fighting to that of child pornography, but many of the justices dismissed this association.
Justice Ruth Bader Ginsburg distinguished between the two. "The abuse of the child, it occurs only because the picture is being taken," she said. "The dog fight goes on whether Mr. Stevens is there with his camera or not."
Scalia asked whether the government's interpretation would outlaw the marketing of bullfighting videos.
Katyal replied that someone could market Spanish bullfighting videos because they are educational, and therefore exempt from the rule.
"Well, I guess a dogfight is educational, too," Scalia replied.
"It isn't illegal in Japan, and part of the video here were dog fights in Japan, legal where it occurred, no different from bull fighting," Ginsburg noted.
But Katyal replied that it is difficult to establish where the films are made to allow for certain videos and not others.
When it was Millett's turn to argue in defense of the dog fighting videos, Scalia showed his apparent favor for her side of the case.
"I really think you should focus, not on the educational value to make people hate bull fighting, but on quite the opposite, it seems to me," Scalia said. "On the right under the First Amendment of people who like bull fighting, who like dog fighting, who like cock fighting, to present their side of the debate."
That way it would fall under the political exception, he explained.
Of all the justices, Justice Samuel Alito may have posed the toughest questions of Millett. "What about people who like to see human sacrifices?" he asked. "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," he said to laughter.
But before Millett could fully answer, Scalia jumped in. "You can create a lot of First Amendment horrible," he said.
He brought up the scenario of 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?" He asked. "Is that proscribable under the First Amendment?"
Millett jumped at the opportunity to say that even though something may be repulsive, depictions of it should not automatically be outlawed.
Later, when Chief Justice John Roberts directed Millett back to Alito's question about the recording of human sacrifices, she answered that it could be banned only if it is done to be recorded, just as she argued in the case of child pornography.
Breyer was skeptical of Millett's argument that Stevens sold the videos for a noble cause. "Promoting a thing which communicates nothing, but appeals to people's worst instinct," he said, "that is not to advocate it or not to advocate it."
"It's not up to the government to tell us what our worst instincts are," Scalia said. "If the First Amendment means anything, that's what it means."