On Oct. 6, the Justice Department will attempt to chip away some of the protection afforded by the First Amendment. The Justice Department will make this argument before the Supreme Court in the case of United States v. Stevens, which Jennifer Liebman first wrote about in May on the ACS Blog.

Currently, there are only a few categories of speech that are unprotected under the First Amendment: Fighting words, obscenity, incitement, libel, and child pornography. Child pornography was the last to be added to the list with the Supreme Court's decision in New York v. Ferber, the 1982 case in which the Court unanimously upheld a New York law banning the distribution of child pornography. United States v. Stevens may become the latest case to add to the list.

Stevens involves 18 U.S.C. § 48, which makes it a federal crime to possess or sell depictions of animal cruelty where the conduct depicted is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place.

The history of this law begins like that of many laws. An interest group (in this case the Ventura County District Attorney and several animal rights groups) came to a member of Congress with a problem. The problem here was crush videos. The member of Congress was Rep. Elton Gallegly (R - Calif.), who authored the bill in response to these concerns.

Unlike most other laws, (hopefully) the bill that Rep. Gallegly drafted may not have solved his constituents' problem. Not once has the law been used to prosecute anyone associated with "crush videos." This may be because the problem of crush videos was overblown from the start. According to Jeff Vilencia, who once made these videos, there are fewer than 1000 people worldwide who are interested in buying them. The law may have been a deterrent, however. Mr. Vilencia, at least, claims to have stopped his own production of the videos because of the law.

It is clear, though, that the law has had a range of unintended effects. Although Congress almost exclusively discussed the need to deal with crush videos when the law was passed, federal prosecutors have used the law exclusively to prosecute distributors of dog fighting videos instead. In addition to Mr. Stevens, Philip William Reynolds and Yer Ly were also convicted of violating the law through their possession or sale of dog fighting videos. Both Mr. Reynolds and Mr. Ly pled guilty.

The law also brought cultural differences within the United States to the surface. Although cockfighting is illegal in all fifty states, it remains legal in Puerto Rico, where it is a thriving part of the culture. Advanced Consulting and Marketing was a company that wanted to broadcast videos of these Puerto Rican cockfights over the internet. The company was wary that doing so may violate the law, however, and they decided to challenge the law. They later withdrew their challenge because of the high costs of litigation.

There are also fears that the law could be used to criminalize some depictions of hunting and fishing. The law defines "animal cruelty" as "conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" if the action is illegal where the material is possessed or sold, regardless of the state of the law where the material was made. Thus, even if a particular type of hunting is legal where the video is made, the person possessing the video in a state where that type of hunting is illegal is violating this law, unless the video has "serious religious, political, scientific, educational, journalistic, historical, or artistic value."

Twelve amicus briefs were filed in support of Mr. Stevens, who is challenging the law. Several were from organizations that are concerned about the law's application to hunting and fishing. The National Shooting Sports Foundation represented the interests of sporting goods retailers, which frequently sell hunting videos. They argued that the videos may include scenes depicting hunting practices that are not legal in all states, potentially putting the retailer at risk for liability under the law.

The Safari Club International and Congressional Sportsmen's Foundation were also concerned about the law. They noted that videos whose primary purpose was entertainment or the marketing of hunting goods may not fall under the law's exception for works that have "serious religious, political, scientific, educational, journalistic, historical, or artistic value."

Several photographers associations and the Endangered Breed Association and American Dog Breeders Association also expressed concern about the law. All of these organizations urged the Supreme Court to uphold the Third Circuit's decision and strike down the law.

Will the Court find the arguments of these organizations persuasive and decide that the law is unconstitutional? We'll know in a few months. The justices may also provide some clues at the oral arguments on Tuesday.