Free Speech or Free Tyranny?

The U.S. Supreme Court has agreed to finally determine whether selling videos depicting animal cruelty should be constitutionally-protected speech.

This year, it will hear the case of United States of America v. Robert J. Stevens. The defendant, who sold dogfighting and hog-dog fighting videos, was the first person to be convicted under a 1999 federal law prohibiting the creation, possession and/or sale of videos depicting animal cruelty with the intention of profiting financially therefrom. He was convicted by a U.S. district court in 2005, but a U.S. appeals court vacated the holding as an unconstitutional restriction on free speech.  

According to one article, “Stevens argued in his appeal that the federal law was unconstitutionally vague and overbroad because it criminalized depictions of conduct that was either legal or happened before dogfighting was outlawed, prosecuted people who did not take part in the underlying conduct or could be extended to hunting and fishing violations.” 

According to the Washington Times, “the U.S. government seeks to carve out an exception to free speech in the case of those selling videotapes of pitbull fighting and the fetished crushing of small animals by high-heeled shoes.”

There has been a question for some years now regarding of legality of sales of videos depicting dog fighting, as well as fetish “crush” videos, in which small animals are crushed by high-heeled shoes. The Humane Society of the United States is currently suing online merchant Amazon.com and four other companies because of their sales of dogfighting and cockfighting videos and magazines. Dogfighting is illegal in all U.S. states, and cockfighting is illegal in 48 states.

-Suzanne McMillan

5 Responses

  1. The law is, in fact, overbroad, vague and impermissibly based on content. While a narrowly tailored law mkay constitutionally criminalize the videotaping or filming of a criminal activity by a participant with the intent to profit from the undertaking, this law allows for very broad and unacceptable prosecutorial discretion. A documentarian like Michael Moore could well run afoul of this statute.

    While the behavior exhibited in these videos and films is as sickening as it is criminal, the same might be said of much reality TV and many documentaries that explore criminality and deviant behavior. Attention should be focused on detecting and prosecuting animal cruelty, but not by abridging the First Amendment, a dangerous collateral attack on a real issue.

  2. Prof Stein, can you explain to me why the possession and sale of child pornography materials are illegal, which seems to be content based just as this law is regarding animal cruelty. Or are you saying that this law is too broadly phrased. From what I’m reading it seems that the court that the appeals court that struck down this law felt that the issue of animal cruelty does not raise to the level of child pornography. “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,” Judge Brooks Smith of the U.S. 3rd Circuit Court of Appeals.

  3. This is the statute, if anyone is interested:
    18 U.S.C.A. § 48
    Depiction of animal cruelty

    (a) Creation, sale, or possession.–Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

    (b) Exception.–Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

    (c) Definitions.–In this section–
    (1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and

    (2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

  4. Dear Steph,

    It’s a matter of degree. The Circuit Court judge accurately reflects policy considerations that underlie treating the sexual exploitation of children as being heinous. And, of course, child pornography per se is unprotected by the First Amendment.

    Many legislative acts can and do protect animals without risking constitutional violations. Perhaps one issue for some is the desire to treat mistreatment of animals on the same level as abuse of children. Certainly there is every right to advocate that view. Just as certainly, few will accept that claimed equivalence including, I suspect, the Supreme Court.

    That said, this particular law strikes me as being overbroad. The exception (b) is unsatisfactory as placing too much discretion in a jury. I see the real possibility of a chilling affect as many will not risk the threat (and the expense) of contesting an indictment and trying a case.

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