The Supreme Court could add depictions of animal cruelty to the list of First Amendment exclusions as it grapples with the thorny problem of drawing a line between harmful and legitimate expressions. -DB
First Amendment Center
April 21, 2009
By Tony Mauro
Analysis
WASHINGTON, D.C. — The stage is set for the Supreme Court to add depictions of animal cruelty to the list of forms of expression that are not entitled to First Amendment protection.
The Court yesterday agreed to consider the government’s plea to revive a 10-year-old federal law that makes it a crime to produce, sell or possess depictions of animal cruelty created for commercial gain. Congress passed the law after learning of a growing market in so-called “crush videos” in which small animals are shown being brutally killed or maimed.
Wayne Pacelle, president of the Humane Society of the United States, applauded the high court’s decision to hear the case. “We wouldn’t allow the sale of videos of actual child abuse or murder staged for the express purpose of selling videos of such criminal acts, and the same legal principles apply to despicable acts of animal cruelty.”
If the high court agrees, such depictions would join “fighting words,” defamatory speech, obscenity and child pornography among expressions that fall outside the umbrella of First Amendment protection. The last time the Court added to the list of unprotected speech was last year in United States v. Williams, when the Court upheld a law that criminalized the promotion or solicitation of illegal acts relating to child pornography.
The 3rd U.S. Circuit Court of Appeals struck down the animal-cruelty law on its face last year in an en banc decision in the case of United States v. Stevens. The 3rd Circuit ruled that the government’s interest in banning this category of expression was not “of the same magnitude as protecting children,” in part because there is no continuing harm to the animals involved — in contrast to the lasting harm to the children used in child pornography.
The appeals court also said the prohibitions of the law swept too broadly, even though it contains an exception for depictions that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The judges said producing videos of bullfighting in Spain could be criminalized under the law.
The challenge to the law was brought by Robert Stevens, a self-described author and documentary producer in Virginia who promotes the virtues of pit bulls. State police in Pennsylvania purchased some of his videos, leading to the prosecution. But Stevens claims — and some experts agreed in testimony during his trial — that his videos were educational, aimed at showing the right and wrong way to train pit bulls and other dogs for hunting. Some contained footage of dogfights in Japan, where such activity is legal. The government also states the videos included a scene of a pit bull attacking a pig. The jury found Stevens guilty and sentenced him to 37 months in prison.
Stevens appealed, claiming among other things that the law amounted to unconstitutional viewpoint discrimination, because the same footage he was prosecuted for using could be used legally by dogfight protesters, educators and historians.
Noting that society “routinely slaughters animals for food, adornment and pest control, and broadly authorizes the recreational killing of wildlife through hunting,” Stevens claims the line between animal cruelty and acceptable use of animals may be difficult to define. “The First Amendment requires that, when it comes to criminalizing speech, such fine lines must be navigated with a scalpel, not a blunderbuss.” Stevens is represented by Lisa Freeland, a public defender in Pittsburgh.
Stevens’ victory before the 3rd Circuit led the solicitor general to appeal to the Supreme Court; when a court overturns a federal law, the solicitor general in almost all cases seeks to resurrect it.
“Like other forms of unprotected speech, such as child pornography, depictions of the intentional infliction of suffering on vulnerable creatures play no essential role in the expression of ideas,” wrote then-Solicitor General Gregory Garre.
Garre noted that the federal law complements statutes in all 50 states prohibiting animal cruelty, and asserted that both the humans and the animals involved in dogfights pose a risk to public safety, justifying the law’s prohibitions. The law also “furthers the substantial interest in preventing the erosion of public mores,” Garre wrote. “Cruelty to animals is a form of antisocial behavior that has no place in a civilized society.”
In a subsequent brief signed by Elena Kagan, the current solicitor general, the government also emphasized that the appeals court struck down the law on its face, without deciding if it was constitutional as applied to Stevens. The Roberts Court has discouraged facial challenges in recent years.
A friend-of-the-court brief filed by the Humane Society on the side of the government asserts that the law, while it was in force, was effective in drying up the market for crush videos. “It worked.
By 2007, sponsors of [the law] declared the crush video industry dead,” the Humane Society stated. “Now, after the Third Circuit’s decision, crush videos are already back online.”
Copyright 2009 First Amendment Center