Opinion: Tonight on HSC: Jon & Kate Minus Eight

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Credit Justice Samuel A. Alito Jr. for the takeaway quote from the Supreme Court’s oral argument Tuesday about a law punishing the possession or sale of depictions of animal cruelty. Questioning a lawyer for Robert Stevens, a pit-bull enthusiast sentenced to 37 months for selling dog-fighting videos, Alito asked if her First Amendment theory would protect people who wanted to watch the ‘Human Sacrifice Channel?’ Other justices then riffed on the concept in the hypothetical-mongering for which the court is notorious. Alito’s hypo seems a bit less far-fetched when one considers the popularity of WWE, televised hockey games and even The History Channel (which one of my peacenik relatives calls The War Channel). Violence sells, But censors, with support from the courts, usually have focused on sex instead. What puts obscenity outside the protection of the First Amendment is that it appeals to ‘prurient interest’ -- that is, it’s sexually arousing.

Patricia Millett, the lawyer for video vendor Stevens, ratified the ‘violence OK, sex bad’ rationale. She conceded that the law might have survived a First Amendment challenge if it had been narrowly drawn to punish only the phenomenon that provoked the legislation -- so-called ‘crush videos’ catering to fetishists who are turned on by seeing a woman crush dogs with her high heels. A non-erotic, aesthetic appreciation of dog-fighting, however, is protected.

The sex/violence dichotomy has inspired the familiar joke about the differences between conservatives and liberals when it comes to censorship: Conservatives want to ban depictions of sex, liberals want to ban descriptions of violence. But it’s rooted in the traditional justification for laws against obscenity: society’s interest in preventing debauchery. As a 19th century British judge put it: ‘I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.’ In other words, keep reading this and you’ll go blind.

That rationale arguably applies to ‘crush videos,’ but it’s hard to see how it justifies prosecution of the sale of dogfighting videos, which means that Stevens likely will go free. Watching violence against animals is constitutionally protected as long as you don’t enjoy it too much. If a Cable TV producer greenlights Alito’s idea of a Human Sacrifice Channel, he should be careful to market it to anthropologists, not sadists.

-- Michael McGough