U.S. v. Stevens - Ask an Attorney
An Animal Rights Article from All-Creatures.org

FROM

Matthew Liebman, Attorney, Animal Legal Defense Fund (ALDF)

On October 6, the United States Supreme Court will directly address the issue of animal cruelty for the first time in more than fifteen years. Last week, ALDF invited our supporters to send in questions about United States v. Stevens, a case involving the sale of dogfighting videos. In this Q & A session, ALDF Attorney Matthew Liebman answers your questions and clarifies the complexities of this important case.

Case Background

The question before the Court in Stevens is whether 18 U.S.C. § 48 (“Section 48”), a federal law that criminalizes the sale of depictions of animal cruelty, violates the Free Speech Clause of the First Amendment to the United States Constitution.

The defendant in the case is Robert Stevens, who was convicted in January 2005 of violating Section 48 by selling three videos depicting dogfights and hog-dogging, including graphic depictions of a pit bull mutilating the lower jaw of a live pig. Not only did Stevens sell the videos, he also narrated them, produced them, and advertised them in dogfighting magazines. Stevens appealed his conviction to the United States Court of Appeals for the Third Circuit. In a 10-3 decision, the Third Circuit held that Section 48 violated the Free Speech Clause of the First Amendment. The court declined the government’s request to establish a new class of speech—depictions of animal cruelty—that is “unprotected” by the First Amendment. To date, there are only a handful of “unprotected” types of speech: slander/libel, incitement, obscenity, fighting words, true threats, and child pornography.

Q: I just finished reading your latest newsletter. I am having a really hard time believing that any video depicting an activity that is illegal could in any way be legal? Am I incorrect that the First Amendment does not give anyone the right to free speech when it causes harm or incites harm? How can such brutal acts captured on tape be allowed to be made and sold at all no matter where they're sold? It boggles my mind. In disbelief (although nothing should surprise me anymore....after all factory farming and the fur trade are legal!) - Liz P.

A: The Supreme Court has long distinguished between illegal conduct on the one hand and speech about illegal conduct on the other. A person generally cannot commit a crime and then avoid prosecution simply by filming it. So if Stevens had staged the dogfights in his videos himself, there’s no question he could be prosecuted for dogfighting. The more difficult question, and the one at issue in the Stevens case, is whether the government can criminalize the sale and possession of the depictions, even when the person selling or possessing the depictions did not commit the underlying crime.

There are many cases in which depictions of illegal conduct serve important democratic purposes by increasing dialogue on social issues. For example, a documentary about drug addiction may include video of someone shooting heroin; an undercover video from an investigative reporter may depict corporate crimes. We rightly expect the First Amendment to protect these videos, despite the fact that they depict illegal conduct. The issue is where we should draw the line. Most people would vehemently oppose the sale of videos depicting the torture, rape, or murder of human beings, especially if such videos had no social or documentary value. The sale of animal torture videos should elicit the same response. And make no mistake: dogfighting videos and crush videos depict nothing less than torture.

Q: The defense points out that animal advocates use footage of dogfighting in its information campaigns. We all know that there is a distinction between the uses, one for profit and to promote illegal activity, the other to guard against this behavior. How is the prosecution going to address this point? - Candy B.

A: We don’t know how the Solicitor General will argue the case during oral argument in front of the Supreme Court, but in its brief, the Department of Justice rightly pointed out that depictions with serious value fall outside of the law. The law exempts “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” 18 U.S.C. § 48(b).

Q: I am very happy that this is finally being addressed by the United States Supreme Court. However, I was wondering, how would this affect the circulation of depictions of animal cruelty by animal rights groups for the purposes of education and raising awareness? - Michelle N.

A: Certainly there are legitimate, constitutionally-protected depictions of animal suffering. As you point out, many animal rights groups use videos and photographs to educate the public about how animals suffer in factory farms, slaughterhouses, and laboratories. Those depictions are absolutely entitled to protection as free speech under the First Amendment. But this kind of educational and political speech is very different from the depictions at issue in the Stevens case, which appeal to nothing more than bloodlust. Animal rights groups can’t be successfully prosecuted under the law, because our depictions fall within the law’s exemption for depictions with serious political, educational, and journalistic value.

Q: I'm struck by the similarity between the issue of depicting dogfights and the issue of depicting child pornography and was wondering whether the bans on child pornography couldn't be used as a precedent for the argument that depicting intolerable animal cruelty should also be banned. Both activities are intolerable and unethical and cross the line to where the right of free speech should not apply. Can a private citizen also send a note to the supreme court about this case? If so, whom would I send it to? - Marge P.

A: ALDF’s amicus curiae, or “friend of the court” brief focuses on the similarities between child pornography and animal cruelty videos, as did the opinions of the district court and the Third Circuit. We argue that the reasons given by the Supreme Court in New York v. Ferber for excluding child pornography from the First Amendment apply to animal cruelty videos lacking in serious social value. In both cases, the government has a compelling interest in protecting the victims, the depictions are directly related to the underlying criminal act (either sexual abuse of children or cruelty to animals), the commercial value of the videos drives the market, the depictions have no social value, and, finally, the designation of animal cruelty videos as unprotected speech is consistent with the Supreme Court’s free speech decisions.

We don’t recommend contacting the Supreme Court about the case. The judicial branch prides itself on its independence from public pressure and tries to render decisions based solely on the law, not public opinion.

Q: My biggest question is (and I hate to sound negative): What happens if the U.S. Supreme Court rules against reinstating the Depiction of Animal Cruelty Act? What do we do from there? How can we help from that point? I would like to be as prepared as possible so, if need be, we can rally together to do what needs done to protect these animals. - Bianca B.

A: The animal protection movement’s response will depend on how the Supreme Court frames its opinion. Even if we lose and the Court holds that the Act violates the First Amendment, we may still have the opportunity to go back to Congress to push for a more limited law. For example, a law that bans only “crush videos” and not all cruelty depictions might be more likely to pass constitutional muster, even if the Court finds the current version too restrictive of free speech.

ALDF will be sure to let our members know what they can do when the Supreme Court’s opinion comes out. In the meantime, none of us has to wait on the Supreme Court to remove cruelty from our daily lives; each of us can adopt a vegan diet, refuse to purchase products that are tested on animals, and help educate our communities about animal exploitation.

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