By ADAM LIPTAK

Published: April 20, 2010 at http://www.nytimes.com/2010/04/21/us/21scotus.html?hp

WASHINGTON — In a major and muscular First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said the law created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

The decision left open the possibility that Congress could enact a narrower law that would pass constitutional muster. But the existing law, Chief Justice Roberts wrote, covered too much speech that depicted lawful activities.

The case arose from the prosecution of Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls. He did not participate in dogfights, but he did compile and sell videotapes showing the fights, and he received a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”

Dogfighting and other forms of animal cruelty have long been illegal in all 50 states. The law applied not to the underlying activity, but to recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” It did not matter whether the conduct was legal when and where it occurred; under the law, what mattered was whether the conduct would have been illegal where the recording was sold.

The government argued that such depictions were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion, saying that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”

He acknowledged that some sorts of speech — among them obscenity, defamation, fraud, incitement and speech integral to criminal conduct — have historically been considered outside the protection of the First Amendment. But he rejected the government’s analogy to a more recent category of unprotected speech, that of trafficking in child pornography, which the court in 1982 said deserved no First Amendment protection.

Child pornography, he said, is “a special case” because the market for it is “intrinsically related to the underlying abuse.”

As a general matter, Chief Justice Roberts wrote, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh its costs.” He continued, “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Having concluded that the First Amendment had a role to play in the analysis, the chief justice next considered whether the law on animal-cruelty depictions swept too broadly.

The 1999 law was enacted mainly to address what a House report called “a very specific sexual fetish.”

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”

When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But since then, the government has used the law in several prosecutions for trafficking in dogfighting videos.

Chief Justice Roberts said the law applied even more broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.

“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders or magnitude,” he wrote.

The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.

“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”

Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals” and would serve to protect “depraved entertainment.”