Cockfighting and the First Amendment.

There's a federal court lawsuit claiming a First Amendment right not to put on a cockfight, but to show it on the internet when the fight itself takes place in Puerto Rico where it is legal.

“We believe firmly that broadcasting and selling legal cockfighting over the Internet is not a crime,” said David O. Markus, a lawyer for the company, Advanced Consulting and Marketing, which runs the site www.toughsportslive.com. “As bullfighting is part of Spanish culture and as violent human fighting is part of our culture, cockfighting is part of Puerto Rican culture.”...

The [federal] law, enacted in 1999 and signed into law by President Bill Clinton, makes it a crime to sell depictions of animal cruelty for commercial gain. There is an exception for works of “serious religious, political, scientific, educational, journalistic, historical or artistic value.”

The plaintiffs do well to play the ethnic diversity card. Congress did not come up with this law to squelch Puerto Ricans, however. What Congress wanted to crush was crush video -- which had women "talking to the animals in a kind of dominatrix patter” and crushing them under her bare or high-heeled foot. (Remember the 90s?)

The law says nothing about whether the underlying conduct is illegal, but makes it illegal to sell depictions of cruelty to animals in places where that conduct would be illegal.

President Clinton issued a statement when he signed the bill, saying he would instruct the Justice Department to construe the law narrowly, limiting it to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

Ooh! A signing statement! I love when a Bush era bugaboo comes up in an non-Bush context. And I note the humor in the way the plaintiffs would take advantage of Clinton's limiting construction by saying that the interest in cocks is not about sex.

Anyway, the government has prosecuted individuals for selling videos of dog fights, so Clinton's effort to maintain the focus on prurient sex is a nonstarter.

The linked article quotes Eugene Volokh, saying the law is unconstitutional because it restricts speech and does not "fall into any existing First Amendment exception.” On the government's side, the argument is that it's like "laws prohibiting obscenity, child pornography, incitement and fighting words." The idea is to create a new category of speech that is "low value," a new First Amendment exception. I hate seeing the courts move in that direction.

UPDATE: Eugene Volokh writes:

The real question is whether the child pornography exception -- the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created -- should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;
2. a ban on production will thus be very hard to enforce;
3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,
4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.
2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.
3. The harm that the distribution of this speech causes -- indirectly furthering animal cruelty -- is much less severe than the harm of indirectly furthering sexual exploitation of children.