U.S. Supreme Court to Rule on Animal Cruelty Ban

Posted on October 2, 2009

Chained dog
Though most people abhor cruelty to animals, there are those willing to pay to see it. Today’s technology has made this easy, and that has fueled trafficking in videos that depict some of the cruelest animal abuses imaginable. Such videos have been illegal in the U.S. for a decade, but a case that has been working its way through the courts may result in the United States Supreme Court ruling that video depictions of animal cruelty are protected under the Free Speech Clause of the First Amendment. The Animal Legal Defense Fund doesn’t believe the law banning these videos violates the Constitution, and we’ve submitted an amicus curiae brief urging the Court to uphold the law and recognize that the prevention of cruelty to animals is a compelling government interest.

The case in question, United States v. Stevens, pivots on Section 48 of Title 18 of the US Code, which prohibits the creation, sale or possession of depictions of animal cruelty if the offender intends to place such depictions into interstate commerce for commercial gain. Congress passed the law in 1999 in part to respond to “crush videos,” which feature women stepping on and crushing small animals to death. In 2005, a jury convicted Virginia resident Robert Stevens of three counts of violating Section 48 by selling videos depicting dogfights and so-called “hog-dog fighting,” including graphic footage of a pit bull mutilating the lower jaw of a live pig. He also provided voiceover narration on each video. The trial court determined that the videos had none of the serious religious, political, scientific, educational, journalistic, historical or artistic value that would exempt Stevens’ videos from the law’s prohibitions.

Sentenced to 37 months in federal prison, Stevens challenged the District Court’s ruling on First Amendment grounds. The Third Circuit Court of Appeals agreed with him, invalidating Section 48 as a violation of the First Amendment. The Third Circuit concluded that the government’s interest in barring the depictions of animal cruelty did not rise to the level of a compelling governmental interest necessary for justifying the regulation of First Amendment protected expression.

In her appeal of the Third Circuit’s decision, the United States Solicitor General urged the Supreme Court to find that depictions of animal cruelty, like fighting words, obscenity, incitement and child pornography, are not worthy of First Amendment protection. The amicus curiae (“friend of the court”) brief submitted by ALDF argues that the statute does not violate the First Amendment and that the Third Circuit’s analysis is simply wrong. “As Congress has found, animal cruelty is often committed so that others can watch,” reads the brief, which emphasizes that the law targets peddlers of videos depicting animal cruelty.

“This case presents a very interesting conflict between two important values: animal welfare and free speech,” says Matthew Liebman, staff attorney for ALDF. “But the conflict appears far less challenging when you consider how horrific crush videos and dogfighting videos are, as well as the fact that the law exempts the kinds of speech we highly value: speech with some political, artistic, or other important message.” Liebman says that regardless of whether the Supreme Court ultimately upholds the law, ALDF expects it to take this opportunity to recognize animal protection as a compelling government interest. “We’ve had animal protection laws in the Americas for more than three and a half centuries, even before there was a United States of America,” he says. “To dismiss animal protection as anything less than compelling, as the Third Circuit did, is unjustifiable.”

The Supreme Court will begin hearing oral arguments October 6, 2009.

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