Disclaimer: the "speech" in question involves production of specialty "fetish" videos of a particularly depraved nature. Any discussion will come from the Times, and is safe for work. (For the record, I will never write or post anything that is not safe for work.) However, the behaviors involved are very unsettling, and sensitive readers may want to avoid further reading. I would sincerely regret causing anyone distress.
Will quotes Stanley Fish at the Times:
The proverbial ordinary citizen, however, may be surprised to learn that, according to Chief Justice John Roberts’ majority opinion, the First Amendment must be read to allow the production and dissemination of so called “crush videos,” videos (and I quote from Roberts’ opinion) that “feature the intentional torture and killing of helpless animals” often by women wearing high-heeled “spike” shoes who slowly “crush animals to death” while talking to them in “a kind of dominatrix patter” as they scream and squeal “in great pain.” How has it come to this?
Even though it should go without saying, I'm going to say it anyway -- people who make or watch "crush videos" (the existence of which I was blessedly unknown to me until about half an hour ago) are reprobates of the absolute worst degree. I have a pretty "live and let live" attitude toward how people get their jollies, but if you're into crushing small animals for sexual kicks, I hope you get crushed underneath a large one.
Anyhow, it seems that the question was decided on a fine point. The behavior itself is illegal (and probably remains so) as animal cruelty, but the filming and dissemination are protected speech. In other words, if you're doing the crushing, you can (and should) go to jail, but if you're the [redacted] doing the filming, you're off the hook.
I do not agree with this decision. Roberts wrote:
Chief Justice Roberts rejected the government’s analogy to a more recent category of unprotected speech, child pornography, which the court in 1982 said deserved no First Amendment protection. Child pornography, the chief justice said, is “a special case” because the market for it is “intrinsically related to the underlying abuse.”
However, Alito in his dissent agreed with Solicitor General (and likely Supreme Court nominee) Elena Kagan:
In his majority opinion, Roberts acknowledges that in child pornography cases the argument that the market for the “product” was integrally related to the incidence of child abuse was found “persuasive.” Alito and Kagan try the same argument in response to the point that while the actions depicted in the crush videos are certainly illegal, depicting them is not because the portrayal of illegal acts is not itself an infringement of law.
Not true, Kagan and Alito reply: the illegal acts occur in large part because there is a market for the videos that depict them; take away the traffic in videos and you will reduce the number of crimes. Indeed, says Alito, those “criminal acts . . . cannot be prevented without targeting . . . the creation, sale, and possession for sale of depictions of animal torture.” Moreover, the effect of the ban “on trafficking in crush videos” would also help “to enforce the criminal laws and to ensure that criminals do not profit from their crimes.” Not to mention, Kagan adds, preventing “the harm to living animals occurring in the creation of the depictions, as well as associated harms arising from the acts of violence.”
The only meaningful difference that I can perceive between child pornography and crush videos (other than that the victims in the former at least [physically] survive the experience) is that one involves humans and the other involves animals. I do not buy Roberts' argument that the market for child pornography creates the underlying abuse but that the market for crush videos is somehow distinct from the cruelty itself. If anything, I suspect the opposite is true, with participants in child pornography doing so for their own depraved gratification (with the production of the pornography being a secondary goal) while crush video participants do so primarily for the purposes of making the video itself.
I think the majority got this case wrong, and I hope Congress writes a narrower law aimed at making sure this small but horrifying market remains bone dry.