Kittens, brutality, fetish videos, and dogfighting—these aren't the elements of a twisted cable-television show; they're just some of the factors in one of Tuesday's U.S. Supreme Court cases that will kick off the court’s new term. The court will hear the federal government's appeal of U.S. v. Stevens, a circuit court's overturning of a 1999 federal law that makes it a crime to create, sell, or possess depictions of animal cruelty for commercial gain. If the court reverses the lower court's decision and reinstates the law, images showing the intentional torture or killing of animals would be deemed illegal. But technically, so might depictions of bullfighting in Spain or fishing and hunting out of season.
Sexual-fetish videos called “crush videos” became an Internet craze in the late 1990s, picturing women in their bare feet or high heels crushing to death small animals such as mice or kittens. Congress passed a law in 1999 to outlaw the production of the videos, and distribution of them came to a halt. Though the law has been in effect for years, no one was ever prosecuted for producing a crush video. Instead, in 2004, a Virginia man was the first person to be indicted under the law for selling what he claims is an educational film.
Robert Stevens is a self-described dog trainer, author, and documentarian. He owned and operated Dogs of Velvet and Steel, a business he claimed provided books, videos, and other materials about training pit bulls. Three films were purchased through the mail by Pennsylvania law-enforcement agents, who were concerned about one scene that pictured a pit bull attacking a pig, and a second clip that depicted pit bulls fighting each other in Japan, where such activities are legal. At trial, Stevens asserted that his videos demonstrated the right and wrong way to train pit bulls for hunting.
The U.S. District Court for the Western District of Pennsylvania wasn't persuaded by Stevens's argument, and a jury sentenced him to 37 months in prison, followed by three years' supervised release. (The law can provide for up to five years behind bars.) Stevens's luck changed when the U.S. Third Circuit Court of Appeals reversed the lower court's decision on free-speech grounds. The law exempts from prosecution an image used for serious religious, political, scientific, educational, journalistic, historical, or artistic value. Essentially, the same videos Stevens was prosecuted for could legally be used by animal-rights protesters, educators, or historians.
If the Supreme Court overturns the circuit-court decision and upholds the law, depictions of animal cruelty will join the ranks of child pornography, obscenity, defamatory speech, and fighting words as expressions that aren't worthy of First Amendment protection. In hearing the case, the court will analyze depictions of animal cruelty the same way it would child pornography, and determine whether there is a compelling government interest to eliminate this form of expression. Making child pornography illegal has the compelling interest of protecting children from sexual abuse and exploitation. But what compelling interest is served by eliminating depictions of animal cruelty?
According to the Third Circuit Court of Appeals, none. While protecting human interests is at the core of statutes regulating child pornography and obscenity, the court wasn't convinced that it should extend such protection to animals. In its decision, the court noted that child pornography is "intrinsically related to the sexual abuse of children" and should be banned because the images will continue to harm children long after the abuse has occurred. "While animals . . . [are] worthy of human kindness and human care, one cannot seriously contend that the animals themselves suffer continuing harm by having their images out in the marketplace."
Currently, all 50 states and the District of Columbia have laws criminalizing animal cruelty. So is the federal statute even necessary? The government thinks so—especially since there was a surge in the posting of crush videos on the Web after the circuit-court decision. In its appeal the government argues that images of animals being intentionally maimed or killed are valueless and harmful, and that the law will curb instances of animal cruelty. Millions of American pet lovers will be anxious to know if the Supreme Court agrees.