Depictions of Acts of Animal Cruelty and Dogfighting Are Now Legal
UPDATE: A bill has been introduced in the U.S. House, HR 5092, to prohibit the sale or distribution of animal crush videos in interstate or foreign commerce. This bill, introduced on April 21 by Representative Gallegly immediately after the U.S. Supreme Court decision was issued, provides a narrow definition of “Animal crush videos” that is tailored to withstand any challenge to its constitutionality based on free speech.
|Contact your U.S. Representative and ask him/her to support this bill. The bill already has 59 cosponsors.|
The U.S. Supreme Court has issued its long awaited ruling on U.S. v. Stevens, a case charging the seller of dogfighting videos under a 1999 law prohibiting the sale of “crush” videos and other depictions of illegal acts of animal cruelty. On April 20th the Court made its determination, overturning the federal law as unconstitutional.
The federal law, 18 U.S.C. § 48, was enacted in 1999, prohibiting the commercial creation, sale or possession of certain depictions of animal cruelty and making it a crime to engage in any of these acts. The law is specific to the portrayal of acts of cruelty, not the underlying act of harming animals. The law was aimed at stopping the sale of “crush” videos, where helpless animals are killed usually by a woman with bare feet or in high spiked heels. There was international trafficking in these sexual fetish videos, which include a soundtrack but no way to identify the participant’s identity.
Robert Stevens was charged under this Act for selling videos depicting gruesome scenes of animals being killed, including videos from the U.S. and Japan. The district court held that the depictions under this law were like obscenity or child pornography and therefore were not protected by the First Amendment right to free speech. The district court also found that the law was not substantially overbroad because it allowed exceptions for constitutionally protected categories of free speech, such as depictions for the purpose of religious, political, scientific, educational, journalistic or artistic purposes. Stevens was convicted on all counts and sentenced to 37 months of imprisonment.
The conviction was appealed to the Third Circuit Court of Appeal. The appeals court vacated the conviction and held that the law was unconstitutional. The court found:
- The law regulates speech that is protected by the First Amendment.
- The statute lacked a compelling government interest.
- The law was not narrowly tailored to prevent animal cruelty.
- The law was not the least restrictive means of preventing animal cruelty.
- There is no reason to recognize a new category of unprotected speech for depictions of animal cruelty.
- There is no validity to a comparison of animal cruelty depictions and child pornography.
This decision was appealed to the U.S. Supreme Court.
The government, in support of this case, argued that the banned depictions of animal cruelty, as a class, are unprotected by the First Amendment.
The Supreme Court disagreed. It started with the basic premise that “Congress shall make no law…abridging the freedom of speech.” However it looked at historical restrictions on the content of speech in a few limited areas, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. The government’s position, that depictions of animal cruelty should be added to this list of restrictions, was rejected by the Court. The Court found:
- The government’s application of a balancing test, weighing the value of the speech against its societal cost, is “startling and dangerous.”
- The government’s cost-benefit analysis is a “highly manipulative balancing test.”
- “Depictions of animal cruelty” are not among the categories of speech that have been historically unprotected.
- The law creates “a criminal prohibition of alarming breadth.
- The text of the statute’s ban on a “depiction of animal cruelty” nowhere “requires that the depicted conduct be cruel.”
- The law applies to “any…depiction” in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.”
- “Wounded” or “killed” do not suggest that cruelty must be involved.
- The text of the law does “require that the conduct be ‘illegal.’”
- The text of the law “draws no distinction based on the reason the intentional killing of an animal is made illegal, and includes, for example, the humane slaughter of a stolen cow.”
- “The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude.”
- If hunting restrictions made a particular kind of hunting illegal in that state, it would be unlawful to sell a video depiction of the killing of an animal anywhere in the country, even if other states permit that manner of hunting, ie. using a crossbow.
- The differences between states in what is illegal in slaughtering livestock would make it unlawful to sell a video of a slaughter practice that has been banned elsewhere, ie. California’s recent ban on docking the tails of cattle.
- The exceptions clause of this law, which would permit depictions of animal cruelty that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” would require an unrealistically broad reading of the exceptions, especially with regard to videos of wildlife that have primarily entertainment value.
- When passed, this law was intended to be applied only to depictions of “wanton cruelty to animals designed to appeal to a prurient interest in sex.”
- This prosecution of a dog fighting depiction shows that prosecutorial discretion in applying this law cannot be trusted.
Finally, the Court determined that this law is “substantially overbroad, and therefore invalid under the First Amendment.” The Court affirmed the Court of Appeals decision.
In his dissenting opinion from the majority, Justice Alito argues that:
- The Court should not have applied the doctrine that overbroad statutes should be struck down because it should have looked at this option only as a last resort.
- The Court should have determined whether “the videos that [Stevens] sold are constitutionally protected.”
- The Court’s determination that hunting videos could be included in the construction of the statute was flawed because hunting is lawful in all 50 states and the statute should be construed to avoid constitutional problems.
- The law specifically targets depictions of “animal cruelty” which is clearly defined by every state to exclude the practice of hunting, which is neither under law—or historically—regarded as an act of cruelty.
- The Court has a duty to interpret the law so as to avoid constitutional concerns and it has failed to do so.
- The prosecution of the creators of crush videos was virtually impossible before the passage of this bill, but the distribution of such videos all but died after the passage of the law.
- “Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct. The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos.”
- The only way to prevent these crimes was to target the sale of the videos.
- The Court should have extended the Ferber reasoning regarding child pornography to reach the same conclusion for a law prohibiting crush videos:
- The conduct is illegal in every state;
- The criminal acts shown on crush videos cannot be prevented without targeting the creation, sale, or possession of videos intended for commercial purposes;
- The harm caused by the underlying crimes vastly outweighs any minimal value that the depictions otherwise would possess.
- “Preventing the abuse of children is certainly more important than preventing the torture of the animals used in crush videos.”
- “But while protecting children is unquestionable more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos.”
- The commercial trade in dogfights can also not be addressed without restricting the sale of such videos for commercial purposes.
- There is a compelling governmental interest in effectively enforcing the nation’s laws and preventing criminals from profiting from their illegal activities.
Justice Alito would reject Steven’s claim that the law was unconstitutional.
The effect of this decision, which freed Stevens and rendered the entire law invalid, may be to open new avenues of commercial enterprises to individuals with video cameras and a criminal lack of conscience. It will certainly limit the efforts of any state law to regulate videos depicting any type of animal cruelty.