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
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?
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 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.