In a video at Iowa Hawk that Glenn Reynolds linked earlier, a brief glimpse of a bullfight reminded me of an interesting (and still unresolved) First Amendment issue.

Can videos like the one that follows be made illegal?

I found the above simply by going to YouTube and entering the searchword "bullfight." I'm not a fan of bullfights, and I'd have trouble sitting through one. I especially don't like the idea of the picador, because it always struck me that cutting muscles in the bull's neck to weaken him is not only cruel, but by deliberately hampering his ability to raise his head, the procedure belies the claim of a bullfight as a fair contest. I realize it's a cultural tradition, but I wish it could be made more humane. (In Portugal, they have a form of bullfighting in which the bulls are not killed.)

But my personal opinion on bullfighting isn't the point. What I think (or any anyone else thinks) has nothing to do with an important First Amendment issue:

Can the government ban depictions of animal cruelty?

A 1999 federal law does just that, and its constitutionality is the subject of a legal battle by a company that distributes cockfighting videos:

The company has sued to overturn a 1999 law that prohibits interstate sales of images depicting cruelty to animals. If it is unable to achieve that, it wants the law interpreted to allow coverage of cockfights.

On the other side of the legal divide are animal rights groups that see the activity as disgusting and cruel.

"It's an indefensible form of staging fights -- watching these animals hack each other to death," said Wayne Pacelle, president of the Humane Society of the United States, which has led the campaign against the contests.

Drawing a comparison to child pornography, Pacelle argued that the cockfighting Web site should be considered illegal.

"Any sensible person can see there is no socially redeeming aspect of cockfighting," he said.

Yet in 1999, depicting animal cruelty was made illegal:

At the heart of the dispute is a law signed by President Bill Clinton that makes it illegal to create, sell or possess a depiction of animal cruelty with the intention of selling the depiction -- across state lines or internationally -- for commercial gain.

The law was aimed at videos that show women harming animals to appeal to sexual fetishists.

After all, as Ann Althouse pointed out in her post on the subject last July, they've already used it against dogfighting videos, notwithstanding Bill Clinton's "signing statement" that it was about sex:

Ooh! A signing statement! I love when a Bush era bugaboo comes up in an non-Bush context. And I note the humor in the way the plaintiffs would take advantage of Clinton's limiting construction by saying that the interest in cocks is not about sex.

Anyway, the government has prosecuted individuals for selling videos of dog fights, so Clinton's effort to maintain the focus on prurient sex is a nonstarter.

The linked article quotes Eugene Volokh, saying the law is unconstitutional because it restricts speech and does not "fall into any existing First Amendment exception." On the government's side, the argument is that it's like "laws prohibiting obscenity, child pornography, incitement and fighting words." The idea is to create a new category of speech that is "low value," a new First Amendment exception. I hate seeing the courts move in that direction.

I couldn't agree more. There is a clear attempt to carve out another exception to First Amendment protection in a manner analogous to the exceptions for kiddie porn and "hate speech," and even the company's lawyer seems to go along with the idea of hate speech restrictions:

The company's Miami lawyer, David Markus, dismisses the child pornography comparison, instead comparing cockfighting to bullfighting, hunting and fishing.

"There is no cockfighting exception to the First Amendment as there is for child pornography or hate speech or violent speech," he said. "You can watch bullfighting, hunting, fishing and any number of activities that some would call cruelty to animals on TV. Some would call those sports."

Slowly slicing off someone's head is human cruelty. So what about the beheading videos? Don't videos depicting cruelty to (or between) humans possess of the same constitutional status as videos depicting cruelty to (or between) animals?

At the risk of sounding Orwellian, are some animals more equal than others?

The whole thing interested me enough to enter the word "cockfight" in the YouTube search engine. Sure enough, there are videos like this.

In a piece about animal cruelty videos on YouTube, opinions varied over what should be allowed:

Many of the videos showing cruelty emanate from America, where the vast majority of YouTube subscribers live. However, some appear to be made in Britain. In one, put on the site by a London resident, a python is shown eating a dead mouse.

The maker, who uses the name youronlynightmare, states on his space on the site: "I do realise people can find them offensive, if they feel sorry for the mouse or rat . . . but it's nature."

In other footage a British family on safari films two lions attacking and killing a giraffe. When the lions begin to eat the giraffe, a child is heard crying in distress. As the parents film the attack and discuss it, they complain at one point that the dead giraffe is blocking the road.

Psychologists say that people who are cruel to animals tend to be cruel to other human beings. Suzanne Conboy-Hill, a psychologist, said: "Research in the United States shows that often people who have been imprisoned for violent or sadistic crime have also confessed to carrying out cruel acts against animals."

And what is an animal? If videos of snakes eating rats should be censored, then why not videos of birds eating snakes? Or toads eating bugs?

What rational basis am I missing?