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This is the act that the appellant was unarguably engaging in when apprehended by law enforcement, and the fact that the law is not aimed at those participating directly in acts of animal cruelty does not in and of itself create a constitutional objection.
The statutes specific mention of interstate commerce renders the appellant's claim that the constitutionality of the statute is in question due to a dependence on state definitions also moot. Not only were the acts depicted in the videos the appellant old to law enforcement agencies unquestionably illegal in all fifty states, but the federal government has a duty to regulate interstate commerce specifically because state definitions and regulations differ. Failing to regulate the interstate distribution of materials illegal in one or more affected states would be a failure of the federal government's constitutional duties.
Determining whether or not an act constitutes animal cruelty can also be achieved by a consensus of men of "common intelligence," as was the test used by this Court to determine an utterance's offensiveness in Chaplinsky v New Hampshire (FindLaw 2010b). This case also clearly affirms that not all speech is protected, especially when it carries no redeeming social value or attempts to impart ideas, but is likely to cause others to disturb the peace or break the law (FindLaw 2010b). These are the criteria against which speech must be judged in order to remain protected, and surely the speech that appears on the depictions created and distributed...
The defense of social value has not been raised by the appellant however, and is not a constitutional issue -- or indeed a governmental issue at all -- but instead is a matter for a jury to decide. The concept of a jury of one's peers is specifically intended to establish guilt or innocence on a case by case basis, and a jury determination of social value or its lack in any given piece of speech is sufficient for this Court.
In short, this Court upholds the statue on its face and as applied in this case. The appellant's claims are denied, and his conviction -- as well as the statute itself -- stand unchanged and unchallenged by this proceeding. Depictions of animal cruelty, as well as other depictions of illegal acts that are likely to cause further illegal acts without demonstrating any significant social value, are not forms of protected speech.
References
FindLaw (2010a). NEW YORK v. FERBER, 458 U.S. 747 (1982). Accessed 14 January 2010. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=U.S.&vol=458&invol=747
FindLaw (2010b). CHAPLINSKY v. STATE OF NEW HAMPSHIRE, 315 U.S. 568 (1942). Accessed 14 January 2010. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=315&invol=568
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