The lawyer for a man convicted of distributing videos of dog fighting in the first case of its kind in the country argued to an appeals court yesterday that what her client sold was an expression of free speech.

"This is not a case about animal cruelty," said Karen S. Gerlach, the public defender handling the appeal. Instead, she told a three-judge panel of the 3rd U.S. Circuit Court of Appeals that Robert J. Stevens was the target of an overly broad criminal statute designed to target sexual fetishists.

The court took the matter under advisement and will issue an opinion at a later date.

Mr. Stevens, of Pittsville, Va., was the first defendant in the country to go to trial on the charges. He was convicted in January 2005 in U.S. District Court in Pittsburgh of three counts of selling videos that depicted animal cruelty and was sentenced to 37 months in prison.

The law under which he was convicted -- it was enacted in 1999 -- was designed to stop the making of so-called "crush" videos, which depict women in high heels crushing small animals. The videos apparently appealed to some fetishists.

However, her client's case has nothing to do with "crush" videos or prurient sexual interest, Ms. Gerlach said.

Because of that, she claims that the videos are a protected form of free speech. The only exceptions to First Amendment protections include words that are lewd, obscene, profane, libelous, insulting or fighting words.

None of those descriptions are applicable in her client's case, Ms. Gerlach said. She also argued that the law her client was convicted under targeted the wrong person.

"The statute is penalizing people several steps down the line -- people who had nothing to do with animal cruelty," she said. "There's no evidence he ever hurt an animal, tried to hurt an animal, fostered it or encouraged it."

The videos in question were taken either in Japan, where dog fighting is legal, or in the United States before it was outlawed.

Ms. Gerlach also noted that the law provides an exception for videos that have scientific, educational or historical value. She claims that the prosecution did not prove that was lacking in Mr. Stevens' case.

Assistant U.S. Attorney Robert Eberhardt dismissed that notion.

In addition, he argued to the appeals court that the statute is not overly broad, in that it seeks to punish those who profit from the commercial sale of depictions of animal cruelty.

That, the prosecutor said, is exactly what Mr. Stevens was doing in this case.

The government's compelling interest -- which is required to override the First Amendment protection to free speech -- is to prohibit animal cruelty, Mr. Eberhardt said.

In addition, he noted that some studies have shown that people who participate in animal cruelty may be more likely to commit other violent crimes.

It is often difficult to find the perpetrators of animal cruelty, Mr. Eberhardt said, and so going after the distributors of such videos is another way to try to curb the behavior.

As part of her appeal, Ms. Gerlach also argued that Mr. Stevens was sentenced under an incorrect standard. Under federal law, if there is no sentencing guideline for a specific charge, the judge is to use the most comparable guideline available.

In Mr. Stevens' case, Senior U.S. District Judge Alan N. Bloch used the guideline for distributing child pornography, and reduced the base offense level in half.

Mr. Eberhardt wrote in his brief to the appeals court that the comparison was valid, in that "both penalize depictions of illegal conduct, and not illegal conduct itself, [and] 'both attempt to protect vulnerable classes of beings that are unable to adequately protect themselves.'"

Ms. Gerlach said Judge Bloch should have applied a statute that applied to fish and wildlife violations.

"The idea of quantifying child abuse as twice as bad as animal cruelty is inappropriate, and, forgive me, absurd," she said.