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Tuesday, September 29, 2009

Sex, Dogs, and Videotape

Should the First Amendment protect depictions of the illegal torture and abuse of animals when produced and packaged for entertainment?

On October 6, the second day of its new term, the Supreme Court will hear oral arguments in a case that will test the limits of our tolerance for, as Justice Oliver Wendell Holmes famously remarked, “freedom for the thought that we hate.”

Robert J. Stevens is a self-proclaimed educator who produces films on pit
bulls that feature, among other things, the sort of activity at least some people breed pit bulls to do, fighting. He was indicted on the basis of a 1999 law enacted to make the trafficking in depictions of “animal cruelty” illegal. You can read the text of that statute here.
Stevens, above, as he appears in one of his pit bull videos

The Constitution gives Congress the power to regulate commerce, hence the language of so many federal bills that puts sale and distribution at the center of illegal activity but while Stevens was charged with producing and selling a dog-fighting film this law was enacted with a different, though just as disturbing sort of film in mind, something known as a “crush video,” where women in high heels torture small animals in a manner that more than a few twisted pleasure-seekers claim provides them with sexual arousal. The statute does exclude depictions of cruelty intended to serve an educational, journalistic or artistic purpose and when he signed the bill, President Bill Clinton expressed his intent that the law be enforced narrowly on the “crush video” alone and always with a careful eye to first amendment concerns. But the way the law was written makes its extension to other forms of animal cruelty easy to make. Passed in 1999, this is its first judicial test.

We should expect next week’s arguments to include some reference to legislative history: if the statute was enacted to punish those producing “crush videos” should the fact that it was written more broadly allow for other convictions?

If so, what of the “slippery slope”? If we decide that this sort of “speech” is of low value and therefore punishable, will Congress be inspired to write laws criminalizing other forms of speech until the First Amendment loses some of its primacy?

Robert Stevens (or Bob Stevens, as he signs his work) makes the claim that his films, including Catch Dogs, Pick-a-Winna and Japan Pit Fights, videos which include depictions of dog-fighting and are the subject of this lawsuit, are educational in nature and indeed most of the videos and books he has produced are detailed with training and development lessons for pit bulls. (Stevens books are still for sale on Amazon as I write this). But the defendant’s intentions are at the very least debatable, with groups like the American Humane Society citing him as clearly a dog-fighting enthusiast whose books and videos are in fact exclusively used as handbooks for those who train dogs to fight.

The federal government does not claim that Stevens participated in arranging the dog-fights but while offering that he does seem to be an “aficionado” of such activities it is not his “viewpoint” on dog-fighting that is the target of the law; the target is the cruel and illegal act being performed in the video. In its brief the government even claims that Stevens “could distribute and sell videos that look identical to the ones [he] made so long as the videos were not produced through cruelty to an actual living animal.” That is important, because the government sees the law as punishing behavior not speech and this is the argument that led to the Court carving out child pornography as a separate category of unprotected speech (see New York v. Ferber). What the government is doing here is trying to carve out yet another category.

The government’s argument in Stevens prevailed at the district court level in 2004 whereupon he was sentenced to 37 months in prison. But in July, 2008, the judges of the Third Circuit, including two regular PJP participants (Judge Dolores Sloviter and Midge Rendell) heard the case on appeal. By a vote of 10-3, that court vacated the lower court’s ruling when it struck down the law as “facially” unconstitutional, meaning that without even considering the merits of this particular case they felt compelled to rule for Stevens since the law is unconstitutional to begin with.

“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,” wrote Third Circuit Judge D. Brooks Smith, comparing the issue to child pornography. (Both Judge Sloviter and Judge Rendell joined in the opinion).

Solicitor General and former PJP Board member and participant Elena Kagan, has now countered in the brief prepared for the Supreme Court that the Third Circuit was too quick to judge the law. She admits that it may have been too broadly written but that that alone should not lead the Court to conclude that preventing the torture and abuse of animals is not a compelling state interest. In a day when football star Michael Vick has brought attention to this deplorable sport, look for US v. Stevens case to get a lot of national attention next week.


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