U.S. v. Stevens Revisited

David Cassuto

The Shameless Self Promotion Desk is back!  The most recent issue of the Journal of Animal Ethics has a piece by me offering some thoughts about U.S. v. Stevens.  It’s titled: “United States v. Stevens: Win, Loss or Draw for Animals?”  You can download it here.  The abstract follows below:

Robert J. Stevens, proprietor of “Dogs of Velvet and Steel,” was indicted for marketing dog-fighting videos in violation of 18 U.S.C.§48, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if  

Which Animals Matter (yet again)?

Seth Victor

To paraphrase the oft quoted excerpt from Animal Farm, all cute and fuzzy animals are equal, but domesticated cute and fuzzy animals are more equal than others. This sentiment was yet again demonstrated over the last week. In one corner, we have human pets, who are mercilessly being tortured for the pleasure of a rather repugnant fetish in crush videos. After U.S. v. Stevens struck down a law aimed a regulating depictions of cruelty, Congress quickly passed a narrower bill that was signed into law by President Obama on Friday. As reported by ALDF, “the more narrowly written law that emerged makes it a crime to sell or distribute videos showing animals being intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury. It exempts depictions of veterinary and husbandry practices, the slaughter of animals for food, as well as depictions of hunting, trapping or fishing.” Hopefully the narrower scope will survive the inevitable legal challenges.

A Battle Won, Perhaps

Gillian Lyons

Following up on last week’s post, on Monday, September 27^th Jon Kyl (R-AZ), Jeff Merkley (D-OR), and Richard Burr (R-NC) introduced legislation, an amendment to H.R. 5566, which will prohibit the sale of crush videos, meaning any film, video, or recording that depicts live animals being crushed, drowned, suffocated or impaled in a manner that would violate a criminal prohibition under Federal or State law. The good news is that a day later, on September 28^th, this legislation was met with unanimous approval by the entire Senate.  While the legislation will now need to be reapproved by the House (which is very likely, due to the original H.R. 5566’s 416 Ayes to 3 Nays), this is a big step in infusing strength back into 18 U.S.C. § 48 after the Supreme Court’s decision in United States v. Stevens. 

Reconsidering Crush Videos

Gillian Lyons

After the Supreme Court struck down 18 U.S.C. § 48 in United States v. Stevens for having too broad a focus (click here for Professor Cassuto’s post-mortem of that decision), there was a general feeling of dismay in the animal law community due, in part, to the fact that the law strove to make the sale of crush videos illegal.

However, in response to the Court’s decision, Congress acted quickly and in June 2010 H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010 was introduced.  H.R. 5566 amends 18 U.S.C. § 48 to give the Act a narrower focus: prohibiting the sale of crush videos, meaning any film, video, or recording that depicts live animals being crushed, drowned, suffocated or impaled in a manner that would violate a criminal prohibition under Federal or State law. The bill was resoundingly approved with 416 Ayes and 3 Nays.          

Some More Cool Animal Law CLE

David Cassuto

From the email:

The DePaul Center for Animal Law cordially invites you and your colleagues to join us for this year’s symposium, “Revisiting the Line between Free Speech and Obscenity: U.S. v. Stevens and Its Impact on Animal Welfare”. The symposium will take place at the DePaul College of Law on Thursday, September 30 from 8:30 a.m. to 4:30 p.m.

The symposium will evaluate the constitutional issues raised in Stevens, as well as draw attention to the destructive influence of dog fighting on our local community. Panelists include Bob Corn-Revere, co-counsel for defendant Robert Stevens, Randall Lockwood, PhD, Senior Vice-President for Anti-Cruelty Initiatives and Legislative Services for the ASPCA and internationally renowned bioethicist, author and veterinarian, Dr. Michael W. Fox.

Stevens Update — The Content-Based Restriction Debate Continues to Swirl

David Cassuto

Congress has introduced a new bill aimed at suppressing crush videos.  In the meantime, the Court will review another content-based law  — this one aimed at restricting violent video game sales to children.  One wonders how the Stevens precedent will figure into deciding whether this California law is constitutional.  More soon.

Lust

Seth Victor

In college I learned a song. The lyrics of that song are largely unpublishable, but I will share the refrain, which goes, “Bestiality’s best boys, Bestiality’s best (something unmentionable about a wallaby)!” It was sung in jest, by both guys and gals, and the point was (I hope) to horrify and not to instruct. I admit I laughed and sang along. A sense of humor goes a long way in keeping ones sanity, and I know the song was only part of a long and raunchy college tradition. Now that I recall those days of endless road trips, listening to my colleagues tone deaf voices proclaim what wonderful sexual acts would befall a myriad of animals, I wonder what sketchy part of my university’s tradition required immortalization in such verse.

Sex is still taboo in our society, and more risqué sexual proclivities are still in the closet, so to speak, though they are not as much of a sub-culture as some people think. Animal sex, with other animals, is not taboo. From dogs in the park to the Discovery Channel, you can watch animal porn to your heart’s content. But is it porn? That depends on the viewer. Porn is sexually stimulating, erotic, and is viewed for some sexual goal. If you tune in to the mating habits of the Guianan Cock-of-the-Rock (I couldn’t make that up) to further your understanding of genetic diversity, you’re a scientist. If your heart starts racing, be careful. I’m being a bit ridiculous, but when you consider that U.S. v. Stevens refuses to apply the same exemptions to the First Amendment that were extended to depictions of child pornography in U.S. v. Williams, while in the same stroke giving the go-ahead for crush videos, it isn’t absurd to wonder where we drawn the line when it comes to human with animal sex acts.                

Wrath

Seth Victor

            I did not intend to include wrath as the second sin, though according to Dante I am already out of order by putting pride first. In light of Tuesday’s Supreme Court ruling in U.S. v. Stevens, I feel that this post is timely.

            Wrath is a terrible vice in the context of animal-human relationships. Wrath isn’t simply rage or force, a knee-jerk reaction at a perceived slight. This isn’t the classic “heat of the moment” response to seeing your spouse in bed with another lover. Wrath has a cool down period, a time to contemplate feelings, but instead of cooling down, those feelings grow into hatred, revenge, and a desire to punish. Wrath is a very conscious and intended vice, and for that reason it is a very human one.

            I am not claiming that other species are exempt from wrath, especially those species that share the same capacity for higher thinking as humans do. Why wrath is so dangerous in the animal-human context is that while other species may possibly carry out premeditated violence, only humans find it necessary to subjugate a number of other species and vent their wrath on countless animals who have no inclination to return the punishment. The ASPCA and HSUS have documented hundreds of cases against a variety of animal victims of varied species. Dogs may be the most commonly abused of them all.

            There is something about dog abuse that strikes a chord with the general population. Average citizens who are normally indifferent about animal issues will rally around the plight of abused dogs. Casual animal rights advocates will lament the condition of a kennel in disrepair, while in the same breath order a double-patty cheeseburger with bacon. Why is this? I think it is because dogs are able to abide by the maxims we are taught as children better than any of us are able to do. They treat you as they would want to be treated. Mark Twain, an animal rights advocate, says it best, writing, “If you pick up a starving dog and make him prosperous, he will not bite you. This is the principal difference between a dog and a man.” Can anyone reading this honestly say they have met an Irish Setter who didn’t have a smile on his face? Ignore a dog for hours, and he is still ecstatic to nuzzle you if you have a bad day. It is not surprising that people are so appalled by abuse against an animal that embodies so many of the sympathetic qualities we admire.     

U.S. v. Stevens, The Post-Mortem

David Cassuto

There’s little good here.  In Stevens, the Supreme Court struck down a law that aimed at and succeeded in curbing the market for crush videos and other animal mutilation.  To be fair, the law was seriously flawed.  But the Court’s analysis is worse.  However, the holding could have been worse still, so I am at least a little relieved as well as disappointed.

18 U.S.C. s. 48 banned depictions of cruelty “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” if that conduct violates federal or state law “where the creation, sale, or possession takes place.”  It exempted depictions possessing “serious religious, political, scientific, educational, journalistic, historical or artistic value.” 

Mr. Stevens operated a website called “Dogs of Velvet and Steel.”   He marketed videos of dog fighting, of dogs attacking pigs, and other similar works.  One would be hard pressed to find any redeeming social value to his wares and the Court makes no attempt to do so.  In fact it spends very little time analyzing the law as it relates to Mr. Stevens.   It instead focuses on the law’s potential applications to other cases not currently before it.  As a result, the opinion runs far into the weeds.  

U.S. v. Stevens — The Decision is In

David Cassuto

And the result is as expected.  The law goes the way off all things.  I shall have more to say on this shortly.

Can U.S. v Stevens Bite Back?

Irina Knopp

I am currently working on a paper that looks at the case, arguments for and possible consequences of U.S. v Stevens. Recently, I’ve found several articles online suggesting that the statute in the case thought to promote animal rights in America could possibly hurt animal rights groups.

Rory Eastburg, author of the article “High Court to Consider Categorical Ban on Cruelty Images,” warns that animal rights groups should be very careful what they wish for because such groups often use film and images to expose the animal abuses that go on and the vague exemption for serious content in 18 U.S.C. § 48 may get them in trouble.

He states, “Many if not all films made by such groups falls squarely within the terms of the statute because they are recording unlawful treatment of animals.” Eastburg fails to explain how animal rights group videos/images would fall under the interstate commerce element of 18 U.S.C. § 48.

Deer Hunting, the First Amendment and Connecticut

Jessica Kordas

The first amendment issues in the news sparked my interest, I headed for the internet to see how U.S. v. Stevens was impacting Connecticut.  Big Game Hunting, a website with a Connecticut news page, has posted an article about US v. Stevens. The article shows particular concern that educational hunting videos will be banded:

“The National Shooting Sports Foundation and its over 4,500 member companies oppose animal cruelty, which is illegal in every state, and stress that hunting scenes are not representative of criminal behavior. Hunting is a legitimate, licensed activity, and responsible hunters respect the animals they pursue and utilize,” said Steve Sanetti, president of NSSF. “Such images assist novices with basic hunting and field dressing techniques and provide education about wildlife conservation and safe and ethical hunting.”  Article available in it’s entirety here .

Supreme Court Hears Arguments on U.S. v. Stevens

David Cassuto

The Supreme Court heard arguments yesterday in U.S. v. Stevens, wherein the the federal law banning trafficking in illegal depictions of animal cruelty has been ruled unconstitutional by the Third Circuit.  The issues underlying this First Amendment case are complex and multi-layered (see posts here ) and there is much more to say.  Among the issues the Court faces are whether the law unconstitutionally constrains protected speech solely on a content-based basis and also whether animal cruelty rises to the level of a compelling state interest that justifies overriding the presumption in favor of free speech.

Another Look at Banning Depictions of Cruelty to Animals

John A. Humbach, Pace University School of law

As most readers here know, in United States v. Stevens, 533 F.3d 218 (3d Cir. 2008), the Third Circuit struck down the Federal statute (18 U.S.C. § 48) that prohibited the creation, sale or possession of media depicting cruelty to animals. However, both the majority and dissenting opinions may have crucially misunderstood the applicability of New York v. Ferber, 458 U.S. 747 (1982), the principal case that the government relied on in supporting the statute. Since Stevens is on its way to the Supreme Court, this may be worthy of comment.

Journalists Argue that Criminalizing the Depiction of Animal Cruelty is Counterproductive

A respected association of journalists – the Radio-Television News Directors Association (RTNDA) – filed an amicus brief in the Supreme Court case dealing with whether it is a violation of the first amendment to criminalize the depiction of animal cruelty. David and Suzanne have blogged about the case here and here.

According to the RTNDA, the federal statute will “make it impossible to cover cruelty as news, ironically eliminating the kind of public exposure that helps in the battle against such cruelty.” Along the same lines, counsel for RTNDA explains that:

We don’t take issue with the fact that the goal of preventing crush videos and other animal cruelty is certainly a worthy one, but argue that it is this very interest in protecting animals from abuse that makes speech about their treatment so valuable. The brief points out that media outlets ‘often expose the abuse of animals, participate in the national debate over the proper treatment of them, and cover commonplace activities involving animals such as hunting and fishing.’ But the law compromises the news media’s ability to perform any of these functions without fear of prosecution.

At first glance, the RTNDA concerns strike me as overblown. After all, the federal law at issue contains an exception which states that the ban “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value”. It would seem that this exception saves the statute. The ACLU, however, has argued that it does not, since:

(1) “such exceptions are strictly limited to depictions of sexual conduct, which are not at issue here”,

(2) the exception clause “contains only one prong of the three-prong test for obscenity, and [the Supreme Court] has emphasized that all three prongs must be met before speech can lawfully be prohibited”, and

(3) “[t]he breadth and vagueness of [the exception] will make it impossible for people to know whether their speech will be considered criminal”.

The Humane Society, as one would expect, sees it differently. According to their amicus brief, the Supreme Court should rule that the depiction of animal cruelty is akin to the depiction of obsence sexual acts for the purposes of the First Amendment, given that:

“Although [the Supreme Court has] previously applied its obscenity jurisprudence to materials that appeal to the sexual subset of these base instincts, there is no justification in history or reason for treating materials that appeal to sadistic but (perhaps) not sexual impulses any differently”

I think that the Government and the Humane Society have the better argument here. Depiction of animal cruelty has little or no value. It should thus not be generally worthy of heightened First Amendment protection. On the other hand, in cases that involve the legitimate use of such depictions (e.g., journalistic purposes) it would seem that the aforementioned exception saves the statute. The ACLU’s argument that the exception is impermissibly vague is unconvincing, for it is not vaguer than typical obscenity ban exceptions, which are clearly constitutional.

Perhaps some of our readers – or David – can chime in with their opinion regarding the RTNDA’s contentions.

Luis Chiesa

Free Speech at the Margins — ALDF and Animal Law Profs File Amicus Brief in U.S. v. Stevens

In U.S. v. Stevens, the Supreme Court will decide whether a federal law forbidding depictions of animal cruelty violates the First Amendment.  Suzanne first blogged about the case here.  ALDF and animal law professors from all over the country (of whom I am one) recently filed an amicus brief in this case.  One of the issues before the Court involves whether the Court’s 1993 holding in Church of Lukumi Babalu Aye v. City of Hialeah, striking down a municipal ordinance banning animal sacrifice (primarily because it targeted the Santeria religion), stands for the principle that animal cruelty cannot rise to a compelling state interest.  We argue that it does not.  I have written about the Lukumi case at some length and you can find it here.

I will have more to say about the Stevens case in the near future.  In the meanwhile, here’s a good post from ALDF.

–David Cassuto