Calling all lawyers...

So, in arguments today before the all new, nearly all-Catholic Supreme Court (someone noted that not even Notre Dame's offensive line is as Catholic) Justice Samuel A. Alito. Jr., made one of those far-out analogies that judges like in order to make a point. Or make headlines. Or both. And he likely succeeded, at least in the second instance.The case involved the sale of dog-fighting videos, and whether a lower court was justified in tossing out a law--on First Amendment grounds--that banned the sale of such videos. Alito was apparently more receptive to the idea of a ban than the other justices, and wondered whether, hypothetically, videos of humans being killed, or a pay-per-view "Human Sacrifice Channel" (DING!) would be okay.Interesting, maybe. But what intrigued me was Justice Antonin Scalia's argument, as reported by the LATimes:

Justice Antonin Scalia, an avid hunter, insisted the 1st Amendment did not allow the government to limit speech and expression, unless it involved sex or obscenity."It's not up to the government to tell us what are our worst instincts," said Scalia. He repeatedly cited German dictator Adolf Hitler and his policies of extermination. Scalia asked, "Can you keep him off the screen" just because his deeds were vile?

Obviously some would see graphic violence as obscene, if not pornographic. Is Scalia's distinction between sex and violence a longstanding one in the law? Is it justified?FWIW, in my layman's mind a crucial issue in this case would be the issue of selling the videos, which doesn't appear to have been an issue for the high court in this instance. The justices seemed to prefer that the animal torture video market be ended by making the practice illegal (which it seems to be, as Michael Vick can attest) and enforcing that law. But profiting off an illegal activity would seem to be enough reason to at least consider barring the videos or other representations, much as selling drugs is as illegal as making/growing them or transporting them. But I ain't got no legal bona fides.

David Gibson is the director of Fordham’s Center on Religion & Culture.

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