8-1 Supreme Court strikes down law banning videos of animal cruelty

Rick Bascuas and I have had a lot to say on this issue as we represented the plaintiff in a similar case involving cockfighting videos. After the oral argument in Stevens (the dogfighting video case), I had this to say:

From what I heard, the case will be 8-1 in favor of the criminal defendant Stevens, holding that Section 48 -- prohibiting the sale of depictions of animal cruelty -- is unconstitutional. The one Justice that seemed to say that Congress could pass such a statute was Alito.

Too bad I can't call football games that well! Today, the Supreme Court ruled 8-1 in favor of the defendant Stevens and invalidated the statute. Alito was the one dissenter. From the New York Times:

In a major and muscular First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said the law created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

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As a general matter, Chief Justice Roberts wrote, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh its costs.” He continued, “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Having concluded that the First Amendment had a role to play in the analysis, the chief justice next considered whether the law on animal-cruelty depictions swept too broadly.
The 1999 law was enacted mainly to address what a House report called “a very specific sexual fetish.”
“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”
When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But since then, the government has used the law in several prosecutions for trafficking in dogfighting videos.
Chief Justice Roberts said the law applied even more broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.
“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders or magnitude,” he wrote.
The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.
“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”
Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals."