May 8, 2009
Private: US v. Stevens: High Court To Weigh Animal Cruelty Ban, Free Expression
Animal cruelty, First Amendment
By Jennifer Liebman. Liebman contributes legal research to the National Coalition Against Censorship and has completed a legal fellowship with the Media Law Resource Center's Institute.
On April 20, the Supreme Court granted the government's petition for certiorari, in United States v. Stevens (05-2497), a case that pits a 1999 federal law prohibiting the depiction of animal cruelty against the First Amendment's protection of free expression.
In 2005, Robert Stevens, a pit bull enthusiast and proprietor of a Web site called Pitbulllife.com, was convicted under the federal law, for selling videos of pit bull fights and pit bulls attacking other animals. The law, Section 48 of Title 18 of the US Code, prohibits:
the sale, or possession of a depiction of a live animal being intentionally maimed, mutilated, tortured, wounded or killed, with the intention of placing that depicting in interstate or foreign commerce for commercial gain, where the conduct depicted is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, and the depiction lacks serious religion, political, scientific, educational, journalistic, historical, or artistic value.
Congress passed the law in response to "crush videos," which usually featured a woman stepping on and crushing to death small animals. Congress was aiming to dry up the market for such videos.
A federal court in Pennsylvania found Stevens in violation of the law. An undercover police sting operation purchased from Stevens three videotapes depicting pit bulls hunting prey, fighting each other in Japan (where dog fighting is legal), and footage of dog fights from the 1960s and 70s. Stevens included voice-over narrations for all three tapes, and observations pertaining to both pit bull physiology, and the cultural and historical significance of dog fighting.
The trial court determined that the videos had no religious, political, scientific, educational, journalistic, historical, or artistic value to overcome the law's prohibitions.
Sentenced to 37 months in prison, Stevens challenged the District Court's ruling on First Amendment grounds. The 3rd U.S. Circuit Court of Appeals agreed with Stevens, saying the animal cruelty law violated the First Amendment.
In its appeal of the 3rd 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 last time the high court excluded a category of expression from First Amendment protection was in New York v. Ferber, a 1982 case that resulted in the Court unanimously upholding as constitutional a New York law banning the distribution of child pornography. In concluding that child pornography did not merit First Amendment protection, the Court relied on the government's compelling interest in protecting children from sexual abuse and exploitation.
Similarly, in this case the government argues that 18 U.S.C. § 48 fulfills a compelling interest in preventing animal abuse, and fostering the humane treatment of animals.
The Third Circuit, however, 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. Specifically, the appeals court said that the government had not provided a sufficient link between the federal law and the interest in preventing cruelty to animals. The court pointed out that all 50 states have enacted laws criminalizing cruelty to animals, including prohibitions on dog fighting. Those laws, the appeals court found, have a direct link to preventing the cruelty to animals.
The government's cert. petition before the Supreme Court also refers to the state animal cruelty laws as evidence that there is a compelling governmental interest in taking action to prevent animal cruelty.
Next term, when the Supreme Court hears the case, its task will be two-fold: it will need to determine whether 18 U.S.C. § 48 as applied to these facts violates Stevens' right of free expression -- that is, are Stevens' pit bull videos actually without serious religion, political, scientific, educational, journalistic, historical, or artistic value? Stevens, in his opposition to the government's petition to the Court, described the narrative content he provided for his videos, including "the correct way to train a dog to hunt and catch prey, and show[ing] footage of some poorly trained dogs to demonstrate improper hunting techniques."
The Court's second task will be to determine whether 18 U.S.C. § 48 is facially unconstitutional, as well as determine whether depictions of animal cruelty should be excluded from First Amendment protection. As the disagreement between the parties to this matter over the serious value of Stevens' videos demonstrates, 18 U.S.C. § 48 is not so narrowly tailored as to prevent protected speech - amateur educational videos on pit bull training, for instance - from being prosecuted. Similarly, categorically removing depictions of animal cruelty from First Amendment protection stirs up similar problems.
Deciding this case on the side of the government would abridge free expression with little added benefit to the welfare of animals. State and federal laws prohibiting animal abuse, cruelty, and neglect do significantly more to ensure the well being of animals. Finding constitutionality in 18 U.S.C. § 48 doesn't benefit animals, and will hurt human expression.