Cruelty and Censorship

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Cruelty and Censorship

[Ed. Note: Read Supreme Court to Weigh Depictions of Animal Cruelty and High Court Debates Dog Fighting Videos. Also read ISAR (International Society for Animals Rights) Amicus Curiae Brief in United States v. Stevens]

By Bee Friedlander on Animals and Society Institute
October 2009

October 6, 2009, the United States Supreme Court will consider a case which involves the issues many of us grapple with daily: the role of animals in our world, our relationships with them, the cycle between animal abuse and other violent behavior. The justices will have the benefit of sophisticated and persuasive public policy arguments in the many Friend of the Court briefs which have been filed in the case of US v Stevens.

Robert Stevens was convicted under a criminal law that Congress enacted in 1999. The Depiction of Animal Cruelty law makes it a crime to knowingly create, sell, or possess a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain. "Any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value" is exempt from the law.

This statute was passed in response to the "crush video" phenomenon which caters to fetishists by portraying women torturing and killing small animals by stepping on them. In considering the bill, Congress concluded that government has an interest in regulating the treatment of animals and the bill "evidences society's desire to ensure that animals are treated humanely.

In 2003, Robert Stevens was brought to trial in federal court in Pennsylvania on charges of violating the act. The evidence at trial showed that Mr. Stevens operated a business called "Dogs of Velvet and Steel" and a website called Pitbulllife.com and that he sold videos of pit bulls fighting and attacking other animals. Stevens advertised his merchandise in Sporting Dog Journal, an underground pro-dog fighting publication.

Undercover police purchased three videos from Stevens: "Japan Pit Fights", "Pick a Winna" and "Catch Dogs and Country Living" (depicting hog-dog fighting). Stevens narrates each of the videos, which show graphic and bloody scenes of animal fighting.

He with a convicted and sentenced to 37 months in prison.

The fighting shown in the videos is clearly illegal. However, Mr. Stevens was not charged with participating in the filming of the videos, but rather solely with the depiction of that activity for profit.

On appeal, his conviction was overturned, the court holding that the Depiction of Animal Cruelty act is invalid as an unconstitutional violation of free speech. The appeals court held: "Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm." The court also noted that this goal is already accomplished by laws in all 50 states and the District of Columbia outlawing the practice.

The government appealed and the Supreme Court agreed to hear the case.

With great oversimplification, there are two legal arguments in favor of upholding the law and reinstating Stevens's conviction. First, the Supreme Court has carved out a few types of speech that are deemed to be unworthy of First Amendment protection (obscenity, words that imminently incite illegal activity and, most recently, child pornography) and that depicting animal cruelty should be added. Second, even if it isn't, the goal of the law - preventing animal cruelty - is so important that it meets the high standard of a "compelling" interest required in order to uphold laws that limit speech.

Several Friend of the Court briefs have been filed which address these issues and also aid the court by discussing the policy issues involved. In fact, taken together, these briefs are a treasure trove of information about the effects of animal cruelty on ourselves and our society. You can read all of them - and more - here.

I'll highlight two.

A brief joined by 45 law professors who teach animal law at a total of 50 schools, argued that the law implicates a compelling governmental interest. The brief argues that the appeals court erred in characterizing the interest involved as solely about "protecting animals" and "failed to appreciate the magnitude of human interests implicated by the prevention of animal cruelty." Beginning with a description on animal law and its development, growth and acceptance over 30 years, the brief concludes:

The development of our field of study has been accompanied by an exponential growth in animal protection legislation and uniform awareness amongst professionals that acts of animal cruelty must be treated seriously. Scientific research and study over the past thirty years has simply confirmed what courts long ago implicitly understood: when we, as a society, tolerate acts of violence, whether to animals or humans, we ultimately condone and facilitate violence to humans. The development of animal law presents society with the opportunity to foster continued national discussion, research, analysis, and debate regarding the interests of animals in the legal system, which inures to the benefit of animals and humans. We are privileged to be a part of that debate before this Court. We respectfully urge the Court to hold that preventing animal cruelty is a compelling governmental interest...

The second brief was submitted by the Attorneys General of 26 states. Recall that the appellate court in overturning the conviction in effect said that the federal law was unnecessary because all 50 states prohibited cruelty to animals.

In response, the 26 AGs note:

All fifty states and the District of Columbia have animal cruelty laws on their books. Enforcement of these laws in the commercial interstate marketplace, where animal fighting and "crush video" products tend to exist, has proven very difficult. Moreover, animal cruelty offenses are closely associated with gambling, drug activity, gang activity and violent crimes against people
(particularly involving children) ...Finally, animal cruelty restrictions and enforcement serve to uphold public mores, which uniformly condemn the depictions at issue.
...
Evidence suggests that over the last decade with section 48 in place, the market for depictions of animal violence and cruelty has declined significantly. This trend, however, may be tenuous as states continue to fight cruelty rings that often reach well beyond their borders. Section 48 is a vitally important tool in their enforcement efforts.

At the Animals and Society Institute, we work to make animal issues part of public policy discussions, and to address the cycle of violence. Whatever the outcome of this case, the Supreme Court justices will have greater insight into what we and many other animal advocacy organizations are all about.