Animal cruelty is a felony offense in most states and in federal court, and Congress passed a law 10 years ago that bans videos of the cruelty. Activities such as dog fighting and cockfighting merit felony status, but the U.S. Supreme Court should strike down the video ban to limit exceptions to the freedom of speech.

The high court heard arguments yesterday in the federal government's appeal of an appeals court ruling that cast the ban as a violation of the First Amendment. The Lingle administration is among 26 states that support the government's appeal, although Hawaii has been among the weaker states on the issue of animal cruelty.

The law was passed and signed by President Bill Clinton in response to Internet sales of videos of women crushing to death small animals with their bare feet or high-heeled shoes. However, instead of limiting the ban to the so-called “;crush”; videos, the bill criminalized videos of any animal cruelty.

In the past 67 years, the Supreme Court has lifted First Amendment protection from “;fighting words,”; threats, inciting illegal activity, obscenity and child pornography. The 1999 law adding animal cruelty to the list of the unprotected has a number of exceptions that include hunting, educational, journalistic and other depictions. With the wide use of blogs, “;journalistic”; could mean just about anything.

The Humane Society of the United States notes that the law “;virtually wiped out the industry”; of dog-fighting videos following its enactment. After the appeals court reversed the conviction of Robert Stevens of Pittsville, Va., last year, the organization says the industry “;has been revived.”;

Of course, the harm comes from the animal cruelty itself, not the videotaping of the brutality. The federal government is well equipped to combat the activity by a federal law enacted in 2007 that makes interstate or foreign transportation of animals or implements used in dog fighting or cockfighting a felony, punishable by up to three years in prison.

A Louisiana man arrested at Honolulu Airport for trying to smuggle cockfighting spurs into the country was sentenced last year to two years in prison. U.S. Attorney Ed Kubo said Hawaii would “;no longer stand for these illegal and heinous activities,”; and his replacement in the Obama administration, Florence Nakakuni, should seek to fulfill that promise.

The Hawaii Legislature also became the 43rd state last year to make cruelty to animals a felony offense in state court, but it exempted cockfighting from the classification. Although Hawaii is regarded as one of the most active cockfighting states, it remains among only 15 states where it is a misdemeanor.