Writing for the majority, Chief Justice John Roberts cited precedent dating back to 1791 that allows for very few government restrictions on the "content of speech." The federal government in defending the law argued that limiting depictions of animal cruelty should be added to the list of speech not protected by the First Amendment.
"It contends," Roberts wrote, "that depictions of ‘illegal acts of animal cruelty' that are ‘made, sold, or possessed for commercial gain' necessarily ‘lack expressive value,' and may accordingly ‘be regulated as unprotected speech.'" Roberts disagreed, writing, "The claim is not just that Congress may regulate depictions of animal cruelty subject to the First Amendment, but that these depictions are outside the reach of that Amendment altogether - that they fall into a ‘First Amendment Free Zone.'"
In analysis for SCOTUSblog, Lyle Denniston noted that the majority decision did stress "that it was not restricting the power of the government to punish actual acts of animal cruelty, and it noted that such prohibitions have ‘a long history in American law.'"
Justice Samuel Alito was the only judge to dissent, writing that the majority's opinion, which "has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted." Alito also said the majority opinion erred in deciding that the federal government's law was overly broad.
Today Pacelle wrote, "With the Court issuing a disappointing albeit carefully crafted decision, it seems that Congress can step in and write a more narrowly tailored federal statute to prohibit the commercial sale of videos depicting extreme and illegal acts of cruelty. Clearly, it should not be legal to stage a dogfight in your basement and then sell the video of this criminal action."