RENEE MONTAGNE, host:
The U.S. Supreme Court today hears a free speech case that looks at videos of dogfighting. It asks whether the government can make it a crime to sell or possess any depiction of animal cruelty.
Critics argue that such a law could apply to anything, say photos in Field and Stream magazine or Arnold Schwarzenegger punching a camel in the movie "Conan the Barbarian." NPR Legal Affairs Correspondent Nina Totenberg reports.
NINA TOTENBERG: In 1999, Congress passed a law aimed initially at something called crush videos. These are videos of women in high heels crushing small animals, like mice and kittens. They're apparently somehow 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.
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, films of pit bulls fighting mainly in Japan, where it's 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.
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Unidentified Man: For centuries the American pit bull carrier has reigned supreme as the gladiator of the pit. You'll see pit matches from around the world.
TOTENBERG: The videos show dogs fighting each other in Japan, ostensibly to 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 law. He was sentenced to three years in prison, more than twice as long as the sentence served by football player Michael Vick, who actually staged dogfights.
Stevens appealed his conviction, contending 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's 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 very small category of speech that gets no First Amendment protection, like child pornography, obscenity and incitements to violence.
Patricia Millett represents Mr. Stevens. She contends that's 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.
Ms. PATRICIA MILLETT (Attorney): 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. That's a pretty empty First Amendment.
Mr. WAYNE PACELLE (Humane Society President): This is not speech. This is commercial activity of a sickening and barbaric type.
TOTENBERG: Humane Society President Wayne Pacelle.
Mr. PACELLE: And 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 limited classes of speech play no essential part of any exposition of ideas, and are of such slight social value that they may be regulated based on their content consistent with the First Amendment.
TOTENBERG: 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, quote, "serious religious, political, scientific, educational, journalistic, historic or artistic value."
But 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 charge that it's the viewpoint, not the photos, that's being outlawed. In this case, the government and the Humane Society contend that Mr. Stevens was not educating the public with his films, but promoting dogfighting.
Human Society president Wayne Pacelle.
Mr. PACELLE: Many people would consider illegal dogfighting acts to be the most heinous of acts of animal cruelty. The fights can last two to three hours. The animals die from blood loss, shock.
Ms. MILLETT: Hunting videos can be very, very bloody.
TOTENBERG: Stevens' lawyer Patricia Millett, backed by the National Rifle Association, notes that hunting videos are an enormous business in the United States.
Ms. MILLETT: I don't know that hunting videos can be guaranteed that their images will be decided by a jury somewhere in the country to have serious value. Hunting's banned in the District of Columbia. It's illegal here.
TOTENBERG: 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 be illegal when sold there. 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.
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TOTENBERG: Critics also worry that a bullfighting scene from the film "The Sun Also Rises," based on the Hemingway novel, or a scene of Arnold Schwarzenegger as "Conan the Barbarian" socking a camel might someday be prosecuted as a crime, and that the producers would have to spend oodles of money to convince a jury of the, quote, "serious value" of the film being prosecuted. As one lawyer puckishly put it, with "Conan the Barbarian," serious value might be difficult to prove.
One of the chief sponsors of the animal cruelty statute, Congressman Elton Gallegly, defends the bill on other grounds: He says that if you look at serial killers, you'll see that they started out torturing animals before they moved on to people.
Representative ELTON GALLEGLY (Republican, California): My objective here was to try to prevent the Ted Bundys and Jeffrey Dahmers and others from graduating as they did.
TOTENBERG: Patricia Millett scoffs at that argument.
Ms. MILLETT: There is no evidence whatsoever that viewing images of animals being killed or wounded causes people to become serial killers. If it did, we better ban hunting by children, too, and no one says that.
TOTENBERG: 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.
Ms. MILLETT: That is using a bazooka to kill a gnat, and the First Amendment makes Congress go get the fly swatter.
TOTENBERG: 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's unknown whether he used a dog to catch and hold the animal during the hunt, a commonly used technique illustrated in one of Mr. Stevens' films.
Nina Totenberg, NPR News, Washington.
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