High court to consider categorical ban on cruelty images

From the Summer 2009 issue of The News Media & The Law, page 12.

In a case that could mark the first time in more than 25 years that the Supreme Court has found an entire category of speech unprotected by the First Amendment, the Court has been asked to rule on whether images of animal cruelty should be excluded from constitutional protection.

“Crush videos”

At the heart of the case is whether 68-year-old Robert J. Stevens must spend 37 months in prison for distributing footage of dogfights. U.S. v. Stevens concerns a federal law that provides for up to five years in prison for anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.”

The House Judiciary Committee issued a report at the time the law was adopted saying it was intended to ban “crush videos” — fetish films in which women step on small animals with their bare feet or high heels. According to the report, witnesses warned the committee about a “growing market in videotapes and still photographs depicting insects and small animals being slowly crushed to death. While most of this material featured torture to mice, hamsters, and other small animals, [investigators found] depictions of cats, dogs, and even monkeys being tortured.”

President Clinton signed the law on Dec. 9, 1999, even as he expressed reservations about its scope. In a signing statement, Clinton said he would instruct the Justice Department to enforce the law only against images “designed to appeal to a prurient interest in sex.” Clinton worried that other uses “may violate the First Amendment of the Constitution and may chill protected speech.”

“Pick-A-Winna”

Congress and the president may have intended to use the law to combat “crush videos,” but there have been no prosecutions for such films in the decade since the law was enacted. On the three occasions that it has been used at all, the law has targeted images of animal fighting.

Robert Stevens is the first defendant to go to trial for violating the law. Stevens was charged with distributing three videos that included footage of animal fighting. Two, entitled “Pick-A-Winna” and “Japan Pit Fights,” included footage of decades-old dogfights in the United States as well as more recent fights filmed in Japan. The third film, called “Catch Dogs,” includes graphic footage of hunters using dogs to catch pigs and wild boars.

Patricia Millett of Akin Gump Strauss Hauer & Feld, LLP, an attorney representing Stevens, had “no explanation for why a prosecutor in Pittsburgh reached into rural southern Virginia to prosecute” Stevens, adding that “the randomness of such prosecutorial decisions highlights one of the dangers of this statute.”

Stevens was sentenced to more than three years in prison, a punishment Millett also called “inexplicable.” She added that “[t]he first person who pled guilty for making films of dog fighting got probation. The second person was convicted not just of filming, but also of actually engaging in dog fighting,” and had a criminal record, but “still got less time than Mr. Stevens.”

The U.S. Court of Appeals in Philadelphia (3rd Cir.) overturned Stevens’s conviction last summer, striking down the statute as a First Amendment violation. Noting that “[t]he Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years,” the court said it was unwilling to find the tapes entirely unprotected by the First Amendment without guidance from the high court.

The appellate court also rejected the government’s claim that depictions of animal cruelty can be banned as easily as child pornography, finding that “[n]o matter how appealing the cause of animal protection is to our sensibilities, we hesitate — in the First Amendment context — to elevate it to the status of a compelling interest.”

Broader issues at stake

The Supreme Court agreed to review the case in the upcoming term. In addition to deciding Stevens’s fate, the Court is likely to consider whether the statute’s exemption clause — protecting material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value” — narrows it enough that it does not burden valuable speech. The appellate court ruled that it was still too broad, apparently prohibiting even some videos of bullfighting or out-of-season fishing.

More fundamentally, the Court also may clarify the test that the government must meet before it can ban other types of speech in the future. The government’s brief claims that a 1942 case, Chaplinsky v. New Hampshire, allows it to prohibit speech whenever the “government interest in restricting the speech” outweighs “the value of the speech.” But the appellate court rejected this claim, finding that this permissive view on restricting speech has been “marginalized” over the last 67 years and adding that “the limited number of unprotected speech categories recognized” since then “strongly suggests that the balancing test tilts in favor of protection.”

“The First Amendment has never allowed such legislative balancing of the value of speech against other governmental ends,” Millett added. “The whole point of the First Amendment was to take that balancing judgment out of the hands of politicians and majorities.”

The Court also may revisit the “overbreadth” doctrine. The doctrine allows courts to strike down a statute as a whole if it regulates a substantial amount of speech protected by the First Amendment as well as unprotected speech. The appellate court suggested that the law may be overbroad because it could prohibit depictions of hunting, fishing, and other common activities. But the government’s brief argues that this regulation of protected speech is not substantial enough to invalidate the law.

Friendly advice

First Amendment groups, hunting advocates, and others filed friend-of-the-court briefs asking the Court to uphold the appellate court’s decision striking down the statute. The Reporters Committee wrote a brief on behalf of 14 press groups arguing that the desire to protect animals is one reason speech about their treatment is too valuable to categorically suppress. 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,” the groups said. But the law “compromises the news media’s ability to perform any of these functions without fear of prosecution.”

On the other side, several animal rights organizations and 26 states filed briefs urging the Supreme Court to uphold the law. The Humane Society of the United States, for example, filed a brief highlighting some of the more repugnant images the law aims to stop, including a video of “a woman slowly crushing to death a speckled kitten” and “an orchestrated fight to the death where tortured dogs and puppies rip the skin and ears off their opponents, and bite through each other’s ears, paws, neck and genitals in a desperate attempt to survive.”

Still, the statute could have unintended effects for animal rights groups, which regularly make videos showing animal cruelty in graphic detail. “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,” leaving the groups at the mercy of an ill-defined exemption for “serious” content, Millett said. “Animal rights groups, in other words, should be very careful about what they wish for.”