Probable highlight of oral argument thus far:
Suppose you have the ethnic cleansing channel on cable TV, and there is no --this is taking place in a country that's beyond our power to influence.
He also talked about gladiatorial contests (the government was wary -- that might be of historical value) while Roberts followed up with a human sacrifice channel. Alito, however, was the one who got his moment in the sun -- citation by Steven Colbert last night. Point is, unless the film makers are directly involved with setting up such activity for the purpose of filming, that is, conspiracy to do the act itself, it should not be outlawed.
Scalia was on board with this principle, noting that the citation of child pornography (the Supreme Court held that selling that could be banned since it promoted the act and the mere visual evidence of it could traumatize) is of different caliber since obscenity (or something like it) is treated as a special case. Bottom line, putting aside the problem with obscenity, children clearly are. And, even there, line drawing can be difficult (e.g., see Brennan/Stevens concurring or attacks on certain types of photography) with special cases arising of particular concern.
So, the exception should be interpreted narrowly. Animals are probably not traumatized by the mere knowledge that certain videos display cruelty. The law already has various exceptions for educational use and so forth.* It is unclear if the dog videos in question would not fall under one. As noted in the oral argument, there is a vagueness problem here. And, the nature of the case underlines this problem. The law was specifically concerned with "crush videos" where animals are purposely harmed/killed for sexual fetish purposes. But, the videos in question here are nothing of the kind. The law is clearly overbroad. Mention of the mere "depiction" underlines this.
The First Amendment free speech provision should be interpreted to require anything not addressing acts as such be held to a very high test. Situations like saying "kill him" to someone with a gun in their hands can be imagined, where it is directly linked to action or a category of speech accepted as illegitimate (e.g., slander). And, case law underlines even these must be carefully tailored, more so than this law. It is proper to outlaw the production of such videos (or the sale in interstate commerce) to the degree that it requires illegal acts to do so.
But, we don't prohibit videos that show crimes being committed. They are instead shown on the news or web. We surely don't do that when the acts are not crimes where they take place. Again, yes, child pornography is an exception. Obscenity is one too, but extending this wrongminded policy to include more non-children related conduct only worsens the problem. It underlines the problem with having exceptions to basic human rights like freedom of speech. Crush videos, after all, can be deemed a type of obscenity. And, animal cruelty in general probably, if the term is not arbitrarily -- as it is in this culture -- limited to sexual matters.
This, I guess, points to the charm of narrowly attacking the statute on vagueness grounds or something. Or, it shows -- no matter how distasteful -- how free speech should be truly upheld. Yes, even if ethnic cleansing (which seems news related anyway) will be showed on television somewhere.
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* In fact, the exception is broad indeed: "serious religious, political, scientific, educational, journalistic, historical, or artistic value." Now, what "serious" means is open to question, but any reasonable interpretation would cover a lot of ground. I personally don't understand how the dog videos in question are not in some fashion "educational," particularly when at least one was filmed in a locale where the practice showed is legal.
And, what does "artistic value" mean? Crush videos aside -- though why not? -- there must be various serious artistic works that result in maiming of animals and so forth. Bullfighting was noted in legislative debates not to be covered. It's an important cultural matter. Selective moral choices is a questionable way to determine things for First Amendment purposes.