Amy Adler discusses animal cruelty law that tests free speech in the New York Times

In an article in the New York Times, Professor Amy Adler discussed a decade-old law now being challenged that makes it a crime to sell videos of animals being crushed and almost all other depictions of animal cruelty. The U.S. Court of Appeals for the Third Circuit recently struck down the law as an unconstitutional violation of free speech and overturned the conviction of a Virginia man who was sentenced to more than three years in prison for selling videos of dogfights, some of which took place in Japan.

The only categories of speech outside the protection of the First Amendment include fighting words, some kinds of incitement, obscenity, and, beginning in 1982, non-obscene pornography involving children.

Adler said the last category was a major constitutional shift. In a 2001 article in the University of Pennsylvania Law Review, she wrote that child pornography “is the only place in First Amendment law where the Supreme Court has accepted the idea that we can constitutionally criminalize the depiction of a crime.”

The challenged law, which does not criminalize the underlying animal cruelty, only its depiction, requires that the activities shown be illegal where the video was bought or sold. Under the law, for example, it could be a crime for an American to sell a video of a bullfight that took place in Spain, where such activity is legal. All 50 states criminalize animal cruelty.

Adler noted that several of the reasons offered for making the distribution of child pornography a crime did not lend much support to the animal cruelty law. “It’s hard to say we’re going to dry up the market for bullfighting in Spain,” she said.

The U.S. solicitor general last month asked the Supreme Court to hear the case, arguing that the depiction of the intentional infliction of suffering on vulnerable creatures plays no essential role in the expression of ideas.