Make no mistake, then: The truth is that the Court simply doesn't care enough about animals – their suffering, their lives – to protect them in the same scenario in which it would quickly protect humans.
I expect more out of Julie Hilden than this emotional appeal, even if she supports animal rights. The ruling was first noted here and a link to another person who criticized it was provided with the note that I refuted (or tried to) the claim over where it was made. But, Hilden is more of a First Amendment absolutist. Up to a point, I guess. The "as applied" approach she suggests might have been best here would poison you in the end numerous times if applied consistently.
The basic problem with the law according to the Supreme Court was that it is overbroad. When it comes to the First Amendment, even laws that have some legal applications are repeatedly struck down if significant improper applications are possible. The burden of proof here should weigh heavily against the censorship side. A law that narrowly addresses a particular harm remains possible. But, Hilden et. al. continuously cite the horrors of crush videos as if the Court "crushed" the chance to stop their sale in interstate commerce. It did no such thing:
We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment .
Hilden (along with Alito, who she praised) wanted the Court to interpret the statute with enough discretion that it not only is upheld to deal with crush videos but other types of harm. "Crush videos" (image of crushed kittens) is repeatedly cited as if this is what the law is all about. Not true. After all, the ruling is not about crush videos. It deals with dogfighting videos. And, if she is concerned with animal cruelty, why an exception for bullfighting? This was cited by the ruling; the ruling did not solely rest on the problem that hunting might fall within the law's ambit. The oral argument got a bit ridiculous talking about different kinds of possible animal fighting, but the point is true enough. Why is dogfighting horrible, but bullfighting not in this context? Culture? Not exactly animal rights focused, that.
The ruling underlines the folly of trusting the mercy of the prosecutor, underlining this very point:
This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” See Statement by President William J. Clinton upon Signing H. R. 1887, 34 Weekly Comp. Pres. Doc. 2557 (Dec. 9, 1999). No one suggests that the videos in this case fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.
As the opinion says, when it comes to free speech, a special rule applies that doesn't apply in all cases -- overbreath that covers protected speech is of special concern. Hilden does not adequately counter this section. Her looser rule would cause problems in other areas. This includes an area of settled law that I share her disdain for -- obscenity. This was my point elsewhere -- repeated references to child pornography does not erase that the opinion here talks about depiction of animal cruelty. Depiction of child porn is allowed.
A law targeted purely to animal cruelty itself would not be the same thing, at least pursuant to this opinion. It also makes some difference that child pornography already is a settled exception, one that already overused in some contexts. Yes, obscenity law is horrid. But, Alito's dissent won't change that; it will make it a bit easier to expand. And, if "snuff videos" would be an exception is neither here or there, when the opinion noted that "a statute limited to crush videos or other depictions of extreme animal cruelty" might be constitutional.
The law should/could have been written more narrowly; when speech is involved, that is (or should be) a steady reminder. The message sent, including not trusting discretion that often is not applied that well, was a good one. No sale.