By Seattle Pet Laws Examiner, Jean-Pierre Ruiz
October 8, 9:22 PM
A badly mauled dog rescued from a dog-fighting operation
Yesterday the US Supreme Court heard a case
titled US v. Stevens. At issue, was a statute
making it a crime to create, sell or possess
videos and other depictions of animal cruelty.
In 2005, Robert J. Stevens, a resident of the
state of Virginia, was sentenced to 37 months
in prison for selling a video which violated the
Depiction Of Animal Cruelty Act (18 U.S.C.
Section 48), a then 10-year old statute
providing, in part:
(a) Creation, Sale, or Possession.— Whoever
knowingly creates, sells, or possesses a
depiction of animal cruelty with the intention
of placing that depiction in interstate or
foreign commerce for commercial gain, shall
be fined under this title or imprisoned not
more than 5 years, or both.
(b) Exception.— Subsection (a) does not apply
to any depiction that has serious religious,
political, scientific, educational, journalistic,
historical, or artistic value.
(c) Definitions.— In this section— (1) the term
“depiction of animal cruelty” means any visual
or auditory depiction, including any
photograph, motion-picture film, video
recording, electronic image, or sound
recording of conduct in which a living animal is
intentionally maimed, mutilated, tortured,
wounded, or killed, if such conduct is illegal
under Federal law or the law of the State in
which the creation, sale, or possession takes
place, regardless of whether the maiming,
mutilation, torture, wounding, or killing took
place in the State;
The statute was originally enacted to
eliminate the sale of so-called "crush videos"
in which women in high stiletto heels pierce
the body or the head of kittens, puppies,
chicks, and other small animals, or crush them
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under their feet. Crush videos have a high
level of sexual overtones and it had proved
impossible to prosecute the producers and
distributors since their identities could not be
determined.
Stevens advertised his videos in Sporting Dog
Journal, an underground dog fighting
publication featuring articles on dogfighting,
an "activity" banned in all 50 states. Stevens'
videos, entitled "Pick-A-Winna" and "Japan
Pit Fights," show circa 1960s and 70s footage
of organized dog fights that occurred in the
United States and involved pit bulls, as well as
footage of more recent dog fights, also
involving pit bulls, from Japan. The third video,
entitled "Catch Dogs," shows footage of
hunting excursions in which pit bulls were
used to "catch" wild boars, as well as footage
of pit bulls being trained to perform the
function of catching and subduing hogs or
boars. This video includes a gruesome
depiction of a pit bull attacking the lower jaw
of a domestic farm pig. Stevens argued that
his videos were training videos and that the
gruesome images were there to "inform" on
the improper way to train a pit bull to hunt! No
one seemed curious as to why, if that was the
case, Stevens was not selling his videos in
magazines targeting hunters.
On appeal to the US Appellate Court for the
Third Circuit, overturned the trial court's
decision and nullified the statute,. By doing so,
the Appellate Court refused to create an
exception to the First Amendment for animal
cruelty. The Court emphasized that the
prevention of animal cruelty was “appealing . . .
to our sensibilities.” However, it found that
such "appeal" was not a compelling
governmental interest in the context of free
speech. Thus, it held, § 48 failed strict scrutiny
because “it serves no compelling government
interest, is not narrowly tailored to achieve
such an interest, and does not provide the
least restrictive means to achieve such an
interest.” Three of the judges dissented
opining that the government's interest in
preventing animal cruelty is “of paramount
importance,” and so far outweighs any value
that speech covered by § 48 might have, that
depictions covered by the statute could be
restricted without violating the First
Amendment.
The free speech clause of the First
Amendment provides:
Congress shall make no law [ ] abridging the
freedom of speech, or of the press [.]
Many parties filed "friend of the Court" (
amicus curia) briefs. In favor of finding the law
constitutional were such organizations as the
Humane Society of the United States, the
Center on Administration of Criminal Justice,
the Animal League Defense Fund, 26 states,
the Washington Legal Foundation and the
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Allied Education Foundation. In opposition,
were the Professional Outdoor Media
Association, the National Rifle Association,
Safari Club International, the National Media
Coalition, the American Society of Media
Photographers, the National Press
Photographer’s Association and dozens of
other groups, all of whom stand to lose more
or less revenue from the enforcement of the
statute, not surprisingly strongly disagreed.
They defined U.S. v. Stevens as a First
Amendment case that could have potentially
devastating consequences on journalists and
Americans’ right to information. Unsaid, of
course, was how much money they stood to
lose. For let there be no doubt that this is a
case about money. Stevens, and others of his
kind, would not have made the video if he
could not make a profit. Conveniently
forgotten, apparently, was the section of the
statute which exempts depictions that have
serious religious, political, scientific,
educational, journalistic, historical, or artistic
value.
Patricia Millet, a partner in the 600-lawyer
firm of Akin Gump Hauer & Feld, represented
Stevens and argued that the law was overly
broad and could criminalize the promotion of
such legal act ivies as hunting and
fishing Justice Samuel Alito did not mince
words or ideas and asked Millet whether a
"human sacrifice channel" would be protected
by the First Amendment. Millet replied that
she would not watch such a channel, but that
it was up to the people to "fight with their
wallets and their votes and not support those
things" but that it was not up to Congress to
censor such images
Deputy Solicitor General Neal Katyal often
stated that "legal" activities such as hunting
imagery were not included within the purview
of the statute. Justice Ruth Bader Ginsburg's
questions seem to want to separate the actual
action from the filming of it. In reference to
whether the statute was overly broad and
replying to questions from Justice Stephen
Bryer, Katyal agreed that Congress must use a
scalpel, not a buzz saw, when crafting
statutes dealing with free speech.
Apparently forgetting that dogfighting and
cockfighting are banned in every state, Justice
Antonin Scalia stated that the Court needed to
consider "the right of people who like
cockfighting, who like dogfighting and who
like bullfighting to present their side of the
debate." Regrettably, Justice Scalia did not find
it appropriate to consider the right of cocks,
dogs and bulls (among others) not to fight. A
dog, cock, or any other animal must be trained
to fight for no reason, and certainly must
taught to fight for the profit of human beings.
Of course, one could argue that people who
enjoy these types of activities may be "human"
but are far from "humane."
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Apparently also forgetting that free speech
has been "limited" by the Supreme Court on
previous occasions, Scalia went to say that "it's
not up to the government to decide what are
people's worst instincts," and as opponents of
animal fighting may be more inclined to
express their views than supporters, that "side
of the debate is entitled to make its point as
forcefully as possible." Yet, the Supreme Court
has previously found constitutional attempts
by Congress (i.e., the government) decision to
curb people's worst instincts. Hence, the First
Amendment does not apply to speech which
presents a "clear and present danger" (e.g.,
you cannot stand in a crowd and yell "fire" or
"kill the President" ... no matter which
President); which is libelous or slanderous (i.e.,
an untrue statement known to be false);
fighting words; child pornography; and
obscenity.
fishing is legal in every State. Therefore, "
intentionallymaiming, mutilating, torturing,
wounding. or killing" a living animal in the
process of hunting or fishing it, is not within
the parameter of the statute. (Note: I do not,
by this statement, advocate or agree that a
living animal should be "maimed, or tortured"
while fishing or hunting. For the record, I am
neither a hunter nor a fisherman.)
The Court has until June 10, 2010 to issue a
decision.
For more info: Depiction of Animal Cruelty, 18 U.
S.C. Section 48: www.law.cornell.
edu/uscode/18/usc_sec_18_00000048----000-.
html; First Amendment: www.law.cornell.
edu/constitution/constitution.billofrights.html;
In fact, most Constitutional law experts agree
that no freedom is absolute.
Seattle Pet Laws Examiner
Jean-Pierre Ruiz
To see more, visit us at examiner.com.
In my opinion, the statute clearly indicates
that imageries from activities such as hunting
and fishing are not prohibited. The statute
clearly states that the "depiction of animal
cruelty" [involves the imagery of] intentionally
maimed, mutilated, tortured, wounded, or
killed [living animals], if such conduct is
illegal under Federal law or the law of the
State in which the creation, sale, or possession
takes place." To my knowledge, hunting and
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