UPDATE: A more detailed story on the argument in United States v. Stevens can be found here at NLJ.com.
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here The hypotheticals ran the gamut this morning, from the "Human Sacrifice Channel" posited by Justice Samuel Alito Jr., to a video celebrating bullfighting, offered by Justice Antonin Scalia. But at the end of a vigorous hour of argument, it appeared likely that the Supreme Court will strike down the 1999 federal law that makes the depiction of animal cruelty a crime.
During Deputy Solicitor General Neal Katyal's defense of the law in United States v. Stevens, all the justices who spoke voiced some skepticism about its broad scope possibly reaching expression that should be protected by the First Amendment. "I would not be able to market videos showing people how exciting a bullfight is?" Scalia asked incredulously. Katyal said there is no "realistic danger" of someone being prosecuted for such a video because the law exempts depictions that are educational, historic, or journalistic. But other justices seemed not to like the idea that determinations about what videos fit or don't fit the exceptions would be left to prosecutors or juries.
Alito was the only justice who seemed somewhat sympathetic to the government's argument. Patricia Millett of Akin Gump Strauss Hauer & Feld, arguing against the the law, said it swept in too many depictions -- including sketches and even hieroglyphics, she said. But Alito said that in the "real world," such depictions would not be prosecuted. Alito pressed Millett on whether, under her reading of the First Amendment, a cable channel devoted to depictions of human sacrifice could be outlawed. Millett hedged and seemed briefly in trouble, but Katyal in his rebuttal said such a channel would be hard to ban, an answer that seemed to help his adversary.
At the end of the hard-fought case, Chief Justice John Roberts Jr. took the unusual step of thanking botth Kayal and Millett for their "very able" arguments in the case. More on today's argument later at NLJ.com
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