Constitution: First Amendment

Stephen Kershnar
Animal-Cruelty Videos and the Supreme Court
Dunkirk-Fredonia Observer
May 11, 2010

A few weeks ago, the Supreme Court in United States v. Stevens, 559 U.S. ___ (2010) by an 8-1 decided that a statute (18 U.S.C. 48) that prohibited the portrayal of acts harmful to animals was unconstitutional. The law made it a criminal penalty of up to five years in prison for anyone who creates, sells, or possesses a depiction of animal cruelty if done for commercial gain. It defined “animal cruelty” as one in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where the creation, sale, or possession took place. It thus criminalized the commercial depiction of activity that is already illegal. It exempted depictions that have serious social value. Scientific, educational, and artistic videos are the sort of depictions that might have enough social value.

The defendant, Robert Stevens, sold videos of pit bulls fighting each other and attacking other animals (specifically, a wild boar and a domestic farm pig). His videos included dogfights from the 60’s and 70’s and recent dogfights in Japan, where it is allegedly legal.

There is a strong case for the law. It was intended to stop the interstate market for crush videos. These videos involve the intentional torture and killing of helpless animals such as cats, dogs, mice, hamsters, and monkeys. These videos are sexually arousing to some consumers. Justice Alito provides a graphic description of one such video involving a woman and a kitten that is absolutely disgusting.

Congress’s motivation in passing such a law was that the only effective way of stopping this criminal conduct (it is illegal in all 50 states and D.C.) is to make it unprofitable. Without the law, the filmmakers are hard to prosecute because the videos are made in secret and often do not show the faces of the women torturing the animals or the video’s time and location. In the rare cases when such perpetrators are identified, they effectively defend themselves by arguing that prosecutor cannot prove the location in which the film was made (thus, the state lacks jurisdiction) or that the statute of limitations has not run (thus, it is too late to prosecute). When President Clinton signed the law, his signing statement indicated that it would cover only crush videos and nothing else, not even dog fighting.

The majority opinion, written by Chief Justice Roberts, found the law unconstitutional. Roberts noted that there are areas of expression that are unprotected by the First Amendment, including obscenity, child pornography, and incitement. He declined to include animal cruelty on the list because it was historically unprotected. The government countered that such speech had so little value that it was unworthy of First Amendment protection. Both arguments are weak. Contra Roberts, a prohibition on expression does not become constitutionally valid just because it’s been around for a long time. On the other hand, the Constitution does not authorize Congress to decide what expression is worth protecting.

Roberts then argued that the statute was overbroad. That is, it criminalized constitutionally protected speech. Roberts argued that it banned depictions of animal suffering beyond crush videos, animal-fighting videos, and other forms of extreme animal cruelty. He reasoned that because the statute covered any illegal treatment of animals and only made exception for material with serious social value, it prohibited hunting videos. He observed that most hunting videos are recreational and thus lack serious social value. Interestingly, Roberts noted that the government provided no explanation of why videos of hunting or Spanish bullfighting have more social value than those of Japanese dog fighting.

The government responded that it would limit its prosecution to extreme cruelty. Roberts dismissed this silly argument. An unconstitutional statute should not be upheld because the government promises to use it responsibly. Roberts ducked the most difficult question, which is whether a narrow ban on crush videos and deadly animal fights would be constitutional.

In dissent, Justice Alito argued that the case should be sent back to the lower court to address whether the narrow ban was constitutional. He argued that the statute was limited to extreme animal cruelty (crush videos and deadly animal fights) and the court got it wrong when it suggested that the statute covers hunting videos. Alito argued that under the statute, such videos were protected because they do not focus on animal cruelty and have serious social value and because Congress did not intend to prohibit them. He argued that this statute was similar to the Court’s previous treatment of child pornography. Like a state law prohibiting child pornography, the ban on depicting animal cruelty was the only effective means by which to prevent horrible and already illegal activity from occurring and the harm prevented easily outweighs the social value of the videos.

Consider the issue of whether the narrow ban would be constitutional. At issue is whether, as a constitutional matter, such material may be banned if it is the only effective way to prevent such abuse. The Constitution includes the basic rule that various social goals are not to be pursued by preventing people from accessing various subject matters or ideas. The Supreme Court opened the door to this when in it allowed states and local governments to ban obscenity (hardcore pornography). It is hard to say what ideas or value obscenity and animal-cruelty videos have, nevertheless they do appear to be express a viewpoint, even if only an aesthetic one.

The sort of debate that Roberts and Alito got into over whether hunting videos had serious social value is not in the text of the Constitution. Nor was it part of the original intent of those who wrote the Bill of Rights or the original understanding of the people when it was passed. Instead, this issue looks like something the legislature should consider. The latter is better able to determine whether deer hunting videos have serious social value.

Also, there is an oddity in that while the justices and members of Congress were outraged by the dog fighting videos, and they are horrific, it is alleged by People for the Ethical Treatment of Animals (PETA) and others that factory farms treat pigs and chickens in ways that are comparably horrific. That they do so in private and for taste rather than entertainment is irrelevant.

If the statute is rewritten to be a narrow ban on crush and animal-fighting videos, the Court will not be able to duck the issue. The narrow ban might be the only effective way to protect innocent animals from being tortured for sexual entertainment. It thus falls under one of the government’s core functions: protecting individuals from harm.

On the other hand, the statute targets expression rather than the underlying victimization. It thus conflicts with the First Amendment’s text and the original intent behind it. We should hesitate to ignore the Constitution. Even when the expression has minimal value and even if the depicted conduct is filthy and destructive, carving exceptions into the Constitution lays the groundwork for the government to target other areas of free speech.