The Supreme Court has agreed to take on a case pertaining to the First Amendment as it applies to animals. And that’s a good thing. When the highest court in the land is willing to review a legal matter that affects animals directly, it speaks to the growing concern for their welfare in all sectors of society.

At issue is that, according to court watchers, the Supreme Court is likely to rule against animal defenders in this test of our stewardship mettle. But is that necessarily a bad thing? shall I equivocate? 

Tomorrow (October 6th) the Supreme Court will hear a case that questions the constitutionality of a 1999 law enacted to ban trafficking in “depictions of animal cruelty.”

Said law was put to the test when Robert J. Stevens created a documentary titled “Pick a Winna,” which included plenty of dogfighting clips (from Japan, where dogfighting is legal) and reveled in the gore with voiceover samples like this one: “For centuries, the American pit bull terrier has reigned supreme as the gladiator of the pit!”

In this and two other Stevens-produced videos, the lower court ruled against, pit bulls were trained to attack hogs and then sent after wild boar. Stevens participated in these “hunts,” leaving no doubt as to where his sympathies lie.

Under the 1999 law, he was sentenced to 37 months in prison, which will now be challenged as the Court weighs whether it will uphold Mr. Steven’s first amendment rights, in spite of the illegality of dogfighting in all 50 states––not to mention its undisputed cruelty.

Should it do so, it will be the first time the First Amendment has been dealt a legal blow at the level of the Supreme Court since 1982 (that time, over the issue of child pornography).

At hand is the question of whether some forms of expression are deemed so revolting and vile that it degrades our culture should we continue to allow them to persist. Clearly, that was the case with respect to child pornography. But does animal cruelty meet the same standards?

It’s argued by most animal welfare advocates that pornography depicting animal crushing (a surprisingly popular, if incomprehensible, fetish) and animal-abusive blood sports deserve this special off-limits designation due to their similarity to child pornography. The same arguments apply, after all.

But when the 1999 law was initially enacted, then-President Bill Clinton felt it necessary to limit its prosecution to cases depicting “wanton cruelty to animals designed to appeal to a prurient interest in sex.” Animal cruelty, per se, was not so much the issue claimed Clinton, effectively suggesting the indefensibility of all other animal cruelty depictions in light of First Amendment protections.

How so? It’s because dogfighting, cock fighting and other blood sports present a unique challenge, detractors of the 1999 law argue. There may be social value to these depictions in an educational, historical or religious context.

Moreover, if we ban the depiction of these acts on the basis of their illegality, would all hunting videos be banned in Washington state, where no hunting is allowed? Would we ban gold-hearted prostitutes and firearm-wielding villains in our favorite movies? How far could this reach? In short, is this law worthy of defense in light of its slippery language?

A clause in the law exempting depictions with “serious religious, political, scientific, educational, journalistic, historical or artistic value” would seem to improve its standing. After all, Stevens wouldn’t get a pass on his wantonly cruel videos while the HSUS would on their factory farm insider clips. But is it always so cut and dry?

I personally can’t imagine that a much-needed documentary on slaughter techniques would be banned, but whether the animal agriculture industry would use its muscle––and this law––to take a production to court, I couldn’t really say.

Because now that the whole law is laid bare for the Supreme Court to dissect, all depictions of animal cruelty are called into question, including the one foul fetish for which it was intended.

Though none among us animal defenders are in favor of cruel portrayals of suffering animals––far from it––I do worry that this law will deservedly get the Supreme Court’s axe, leaving all those who would be protected by a more carefully worded version in the lurch for years to come.

It's also my take that laws like this serve as mere stop-gaps where the criminalization of animal cruelty would suffice––if these laws actually had any teeth. What's wrong with us as a society that we can't come up with a better way to protect animals?

So I ask again: If the Supreme Court should side in favor of Stevens, with all the nose-pinching that entails, is that necessarily such a bad thing?