WASHINGTON — The Supreme Court took up a dog-fighting case Tuesday to decide whether the First Amendment's protection for freedom of speech goes so far as to protect the sale of gory videos of animals being tortured and killed.
But the argument turned to an even more ominous question:
Could the government outlaw a future "Human Sacrifice Channel" on cable TV or "snuff films" showing humans being killed?
That question may have given a boost to a case that the government and animal-rights advocates seemed to be losing.
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Last year, a federal appeals court, citing the freedom of speech, struck down a law against selling videos with scenes of animal cruelty.
The law applied only to illegal acts of torturing or killing animals, not legal hunting or fishing. It was intended to dry up the underground market in "crush videos" that show animals being stomped by women in high heels. More recently, it has been used to prosecute people who sell videos of pit bulls and other dogs fighting.
Most of the justices sounded wary of reviving that law, fearing it may be used against depictions of bull fighting or other scenes of animals being killed.
Justice Antonin Scalia, an avid hunter, insisted the First Amendment does not allow the government to limit speech and expression, except for sex or obscenity.
"It's not up to the government to tell us what are our worst instincts," Scalia said.
But Justice Samuel Alito garnered the attention of his colleagues with questions on whether videos portraying humans being killed would be protected as free speech.
Raising a hypothetical, Alito said there may well be a "pay per view" market for programs made outside the United States and beyond the power of U.S. law that showed real people being killed. He called it the "Human Sacrifice Channel" and wondered aloud whether Congress could outlaw showing such programs in this country.
"Live. Pay per view, you know, on the 'Human Sacrifice Channel.' That's OK?" Alito asked.
A lawyer who was defending a Virginia man who sold dog-fighting videos said she was not sure. "The fact conduct is repulsive or offensive does not mean we automatically ban the speech," said Patricia Millett, the lawyer for defendant Robert Stevens.