DURHAM, N.C. - A major free-speech case before the Supreme Court Tuesday centers on whether the government can make it a crime to sell or possess any depiction of animal cruelty.

A legal expert at Duke University says that unless a new category of protected speech is created, the government will have a difficult time convincing the Supreme Court to overturn an appeals court decision.

"The broader First Amendment point is that even speech that most find repugnant is ordinarily protected in the United States (unlike most every other country)," said Stuart M. Benjamin, a professor at Duke Law School.

"If these depictions are not in such an unprotected category, then they are speech under the First Amendment. Under such circumstances, the government would have a hard time satisfying the strict scrutiny that the Supreme Court ordinarily applies in considering government regulations of speech."

A federal statute prohibits the "creation, sale, or possession of a depiction of a live animal being intentionally maimed, mutilated, tortured, wounded, or killed," noted Benjamin, the Douglas B. Maggs Professor of Law at Duke.

In United States v. Stevens, the Supreme Court will consider whether the Free Speech Clause of the First Amendment invalidates this statute.

"The Supreme Court has stated that there are a few categories of unprotected speech -- most notably, incitement to violence and obscenity," Benjamin said. "A key question in this case is whether the Supreme Court should create a new category of unprotected speech for the communication at issue in this case -- the ‘depiction of a live animal being intentionally maimed, mutilated, tortured, wounded or killed.'

"The government says that such depictions do not advance any ideas and thus is outside the First Amendment. Stevens, the defendant, argues that these depictions often communicate many ideas, including the importance of protecting animals -- and he notes that such videos are made by animal rights groups to expose treatment of animals."