Just last week, a strong majority on the U.S. Supreme Court ruled that a 1999 federal law outlawing certain videos depicting animal cruelty and other weird practices involving animals (so-called “crush videos”) was overly broad and operated as an unconstitutional infringement of First Amendment rights. I was one of the few members of the U.S. House of Representatives to vote against the legislation at the time of its passage. I did so for the same reasons the Supreme Court threw out the statute last week — not because any of us find the activity protected by the First Amendment to be laudable (far from it); but because it sweeps too broadly and attaches criminal penalties to a person’s right to freedom of expression.
Moreover, it is not as if true acts of animal cruelty would go unpunished without this federal law in place; virtually every state already criminalizes such practices. The high Court decision, and my vote against the legislation 11 years ago, simply reflect that a federal law restricting such behavior is unnecessary and constitutionally defective.
Now, just a week after that decision, the Court has announced it will take up another video case; this one involving the extent to which states, including California, can prohibit the sale to minors of video games depicting what might be called extreme violence. Last week’s animal cruelty video opinion may contain some clues as to how the justices might rule in this most recent case they have taken under advisement.
In the crush video opinion, the Court distinguished earlier decisions that upheld limits on the distribution of videos depicting child pornography. Applying that same reasoning might lead a majority to find California’s law on violent video games (similar to laws in a half dozen other states), to constitute a permissible limit on otherwise free expression. Still, both a federal trial court and the Ninth Circuit Court of Appeals found the law unconstitutional. Even if a majority of the Supreme Court justices rule in favor of the state law, it will likely be much closer than last week’s 8-1 decision.
California Gov. Arnold Schwarzenegger, who signed that state’s law five years ago, characteristically has praised the state prohibition.