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Summary of US v. Stevens
Posted on 07/09/2010 in Your Dog, Your Rights.

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How many of you out there have heard about a recent decision made by the Supreme Court of the United States and just been left scratching your heads, confused over how the Justices could reach the decision they did? I know before law school I usually felt the same way, and didn’t really understand the implications of most decisions. Well, a major victory was scored in April through a decision by the Supreme Court. Because I think this was a very important decision and a big defeat to the animal rights side, I’d like to dedicate this column to explaining this decision in depth.
The Supreme Court case I’m talking about was US v Stevens. This case was brought before the Supreme Court to decide whether 18 USC §48 was unconstitutional. Most cases come before the Supreme Court to decide whether or not the law in question violates the Constitution, and not all cases are granted permission to be heard—mostly those with important constitutional questions. The statute in question here makes it a crime to create, sell, or possess depictions of animal cruelty. The defendant, Robert Stevens, was criminally charged under the statute for selling three videos; 2 of dog fighting footage and one of dogs being trained to catch and subdue wild hogs (which also contained a 3 minute dog fight clip.) Stevens was convicted in federal court, but it was later overturned by a federal appeals court, on the basis that the statute he was convicted under is an unconstitutional infringement on free speech. The government appealed the decision to the Supreme Court, and the Supreme Court granted certiorari, meaning they decided to hear the case.

The question the Court was being asked to decide was whether this law violated, or infringed upon, our constitutional right to free speech. The right to free speech and expression has a long history of being strictly protected by the Supreme Court. The Court was quick to first acknowledge that this law does not address any actual harm to animals, but only the portrayal of ‘harm.’ It does not necessarily punish those committing acts of cruelty. Stevens, the defendant at the heart of the case, was not actually fighting dogs himself but rather selling videos of dog fights. (I would also like to point out here that the sentence Stevens was given for selling videos was 14 months longer than Michael Vicks’ sentence for actually fighting and torturing dogs.) Also, the intent of Congress in creating this law was to stop the production of ‘crush videos,’ which are apparently videos of women torturing small animals with their feet. Obviously, the law has been applied to other depictions of animal cruelty.

Stevens was selling two videos: “Japan Pit Fights” and “Pick-A-Winna: A Pit Bull Documentary,” which showed dog fights from Japan where dog fighting is allegedly legal, and footage from dog fights in the 1960’s and 1970’s that Stevens contends were legal at the time. His other video, “Catch Dogs & Country Living” showed the use of pit bulls on wild boar, and contained footage of a pit bull attacking a domestic pig. The district court that convicted Stevens likened depictions of animal cruelty to child pornography, and claimed that like child porn, should be found to be an unprotected form of speech. Depictions of animal cruelty have never been deemed by any court to be unprotected speech (meaning speech that can be restricted or regulated).

Traditionally, any restriction on speech is considered to be ‘presumptively invalid’-meaning automatically illegal-and the burden is on the government to prove that the restriction is acceptable. The few classes of speech that have been deemed to be unprotected and open to restriction are: obscenity, defamation, fraud, incitement, speech integral to criminal conduct, and child pornography. The Supreme Court dismissed the comparison of depictions of animal cruelty to child pornography, and stated that the market for child pornography is “intrinsically related” to the actual abuse of children. Without the sale of child pornography, there would be less reason to create child pornography, and thus less sexual abuse committed against children. The same cannot be said for animal cruelty, or more specific to the case, dog fighting. Dogs are not fought solely for the creation and sale of videos; stopping the sale or possession of dog fighting videos will not have much of an impact on illegal dog fighting. Because there is no integral link between depictions of animal cruelty and the actual commission of animal cruelty, the Court refused to classify depictions of animal cruelty as unprotected speech.

Stevens challenged the law as being unconstitutionally overbroad. A law can be found overbroad if some applications of the law are found to be unconstitutional. The Government argued that the law was only to apply in “extreme cases;” however the law is not specifically worded to apply only to “extreme cases.” The Court read the law to state that while it bans depictions of animal cruelty, “it did not require that the conduct itself be cruel.” The law applies to any material in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” All of these listed acts imply cruelty except for “wounded” or “killed.” While the law does not require that the conduct being depicted actually amount to cruelty, it does require that it be illegal. It can be illegal either where the depiction was created or illegal where possessed or sold.

The fact that the conduct does not have to amount to cruelty coupled with the fact that it has to be illegal where created, sold, or possessed creates a vast array of problems. Laws differ between jurisdictions. There are many federal and state laws that deal with the treatment of animals but have nothing to do with cruelty: endangered species laws, livestock regulations, and hunting/fishing rules. A perfect example of how this law could be unconstitutionally applied would be hunting videos sold in Washington DC. If a person created a coon hunting video in Pennsylvania where coon hunting is legal, and sold it to someone in Washington DC, they could be found in violation of this law. Coon hunting is not animal cruelty, but it is illegal in Washington DC. The fact that it’s illegal in Washington DC has nothing to do with cruelty; all hunting is illegal in the DC area because it’s a metropolitan region and hunting there would be unreasonable. This just illustrates that those in the business of making hunting videos would have a major mess on their hands to try to do so legally. They would have to follow a maze of regulations from 56 jurisdictions to find out what is legal where. This problem is not simply limited to hunting, as agricultural regulations are also vastly different across jurisdictions. Cages for hens on egg farms will soon be illegal in California; if someone made a video about the use of cages on egg farms it may be a violation of this law to sell that video in California when cages are banned.

The law does have exceptions listed: material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value” would be exempt under the law. The Government argued that these exceptions help narrow the law, and gave two examples they claim would be exempt. The Government claimed hunting videos are educational, and that videos of bullfighting in Spain have historical value. The Court found that for the exceptions to work, they would have to be read very broadly, but because the exceptions must have “serious” value, the law must be narrowly construed. According to briefs filed by various hunting groups and the National Rifle Association, the Court found that most hunting videos are not instructional and educational in nature, but rather created for entertainment, marketing, and recreational purposes. Further, the Government could not demonstrate to the Court why hunting or bullfighting videos are inherently valuable while Japanese dog are not.

Another weak argument that the Government made was that this law would only be used for “extreme” cruelty and would reserve use of it for serious cases. The Court said no way, that’s what the First Amendment is intended to protect us from. The Court said that an unconstitutional law cannot be left standing “merely because the Government promised to use it responsibly.” Proof of the problem with this promise is the prosecution of this case itself! When the law was enacted Congress announced that it would only be used for depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex,” or in other words, the crush videos. Dog fighting and hog catching are pretty far from these crush videos.

Finally, the Court refused to impose restrictions or to rewrite the law to make it constitutional—to do so would invade the legislative process and detract from Congress’ “incentive to draft a narrowly tailored law in the first place.” Ultimately, the Court found that the narrow market of speech the law was intended to curtail was far outweighed by the acceptable speech that would be unconstitutionally abridged, and so the law was struck down and Stevens’ conviction reversed. It should be noted that the Court was in no way condoning dog fighting or any kind of animal cruelty, but was protecting our right to free speech. It should further be noted that Justice Alito (appointed by President Bush) dissented the decision, and he uses the brief filed by the Humane Society of the United States as evidence in support throughout most of his dissenting opinion.

You might be asking yourself what does this free speech issue have to do with us as dog owners? Well, while this mainly was a free speech issue, it was a law that the AR groups obviously supported, and they filed briefs arguing in support of the government. They would like to see an end to all hunting in the US, and this would have been a step in the right direction for them. Ironically enough, should the law have been left standing, these groups could have come under fire themselves with the videos of clear animal cruelty that they use for many of their campaigns! The Supreme Court showed support for hunting in this country and made it clear hunting is not animal cruelty. Many dog owners are also hunters, and hunting programs with dogs are very important to UKC. This was a major defeat for AR groups in the highest court in the land. All of these animal issues, from hunting to dog owner rights to livestock husbandry, are linked together in the battle against the AR groups, and each victory strengthens our cause.