The Supreme Court hears a major free speech case on Tuesday that asks whether the government can make it a crime to sell or possess any depiction of animal cruelty.
The case is about dogfighting videos, but critics argue that it could apply to anything from photos in Field and Stream magazine or hunting videos, to Arnold Schwarzenegger punching a camel in Conan the Barbarian.
In 1999, Congress passed a law aimed initially at "crush videos." These are videos of women typically in high heels crushing small animals, like mice and kittens — apparently a sexual fetish.
The law, however, has broad language. It makes it a crime to possess or sell any depiction of animal cruelty — specifically the killing, wounding, torturing or mutilation of an animal — as long as the conduct is illegal in the place where the prosecution is brought.
Dogfighting And The First Amendment
Enter Robert Stevens, a pit bull lover — or exploiter, depending on who is telling the story. He did not make any dogfighting films or stage any fights. Instead, he compiled films made by others of pit bulls fighting mainly in Japan, where it is legal.
Stevens sold the films commercially. He says it was to promote the proper use and training of pit bulls. His critics say it was to make money.
The videos of dogs fighting each other in Japan ostensibly show how the fights are done more humanely there. Other videos show dogs catching wild boar and holding the prey for hunters, which is legal in many states.
In 2004, Stevens became the first and, so far, the only person to be tried under the animal cruelty depiction law. He was sentenced to three years in prison, more than twice as long as the sentence served by NFL player Michael Vick, who actually staged dogfights.
Stevens appealed his conviction, contending that the animal cruelty depiction law is unconstitutional, and a federal appeals court agreed. The court said the law was written so broadly that it could lead to up to five years imprisonment for selling a video featuring bullfighting in Spain, where it is legal, or hunting or fishing out of season in the U.S.
The government appealed and now is asking the Supreme Court to place depictions of animal cruelty in a small category of speech that gets no First Amendment protection — like child pornography, obscenity and incitements to violence.
Patricia Millett, who represents Stevens, says the law is an attempt to roll back the First Amendment guarantee of free speech based on nothing more than a congressional weighing of the pros and cons of certain ideas about animals. That, she says, amounts to censorship, plain and simple.
"The whole point of the Constitution is that it's not supposed to change just because a majority in Congress decides that it no longer thinks these images are, on balance, worthwhile," Millett says. "That's a pretty empty First Amendment, and it's never been the First Amendment that we've had in this country."
Hunting And The First Amendment
Humane Society President Wayne Pacelle disagrees.
"This is not speech. This is commercial activity of a sickening and barbaric type," Pacelle says. "The peddlers of this smut should find no safe harbor for it in the First Amendment. The courts have recognized that certain well-defined and narrowly tailored categories of speech play no essential part in the exposition of ideas, and are of such slight social value that they may be regulated as to their content."
In short, Pacelle and the government contend that dogfighting videos are like child pornography and obscenity. They say the safeguard in the law is that it provides an exemption for depictions of animal cruelty that have "serious religious, political, scientific, educational, journalistic, historic or artistic value."
And indeed, films considerably more gruesome than the Stevens videos are on the humane society Web site to illustrate that dogfighting is reprehensible. That leads critics to argue that Stevens wasn't prosecuted because of his video, but because of his viewpoint and the notion that despite his disclaimers, he was promoting dogfighting.
"Many people would consider illegal dogfighting acts to be the most heinous acts of animal cruelty. The fights can last two to three hours. The animals die from blood loss, shock," Pacelle says.
But Millett, backed by the National Rifle Association, notes that hunting videos are an enormous business in the United States.
"I don't know that hunting videos can be guaranteed that their image will be decided by a jury somewhere in the country to have serious value. Hunting is banned in the District of Columbia," Millett says.
The NRA notes that dove hunting is illegal in 10 states, so that under this statute, dove hunting photos in magazines or on TV would also be illegal in those states.
Serial Killer Argument
Critics of the animal cruelty law cite endless examples that could be fodder for prosecution. And a wide array of entertainment and news organizations, including NPR, have filed briefs contending that the law is unconstitutional.
Critics also worry that a bullfighting scene from the film The Sun Also Rises, which is based on the Hemingway novel, or the scene of Arnold Schwarzenegger as Conan the Barbarian punching a camel might someday be prosecuted as a crime.
And producers would have to spend oodles of money to convince a jury of the "serious value" of the film being prosecuted. As one lawyer puckishly put it, with Conan the Barbarian, "serious value" might be a stretch.
One of the chief sponsors of the animal cruelty statute, Rep. Elton Gallegly (R-CA), defends the bill on other grounds: He says that most serial killers started out torturing animals before they moved on to people.
"My objective here was to try to prevent the Ted Bundys and Jeffrey Dahmers and others from graduating as they did," Gallegly says.
Millett scoffs at that argument.
"There is no evidence whatsoever that the viewing of images of animals being wounded or killed causes people to become serial killers. If it did, we better ban hunting by children, too, and no one says that," Millett says.
If Congress wants to ban crush videos, she says, it can write a statute aimed specifically at that. Instead, she says, Congress, albeit it with caveats, banned all videos depicting the intentional wounding and killing of animals.
"That is using a bazooka to kill a gnat. And the First Amendment makes Congress go get the fly swatter," Millett says.
Just how the justices will react to this case promises to be interesting. There almost certainly are dog lovers on the court — and hunters. Indeed, Justice Antonin Scalia has a wild boar's head on the wall in his basement. It is unknown whether he used a dog to catch and hold the animal during the hunt, a commonly used technique illustrated in one of Stevens' films.