The Cruelty of Freedom

I never thought the day would come that I would agree with Justice Samuel Alito and disagree with NPR. The Supreme Court on Tuesday in an 8-1 vote (Alito, the lone dissenter) overturned a law that bans the selling and creation of videos or photos depicting animal cruelty, including illegal torture, maiming and killing (NPR wrote a brief in support of banning the law). Chief Justice Roberts wrote for the majority, stating the law violates the first amendment right to freedom of speech and took to task the government's assertion that via legislation it can ban any category of speech it decides is unworthy of protection under the First Amendment. "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs," Chief Justice Roberts argues. The question remains, however, as to the legal responsibility of an individual expressing and profiting from images of illicit activity: if it is illegal to torture, maim and kill animals for one's amusement, and the creation and sale of videos depicting such activities requires the illicit actions to occur by the very fact that they exist, how then can you argue that the possession or marketing of these videos is legal? Better yet, how can you reject the assertion that such actions do not in some way make you responsible for the continuance of illegal activity? Would it help if I drew a supply and demand curve?


To provide context, the 1999 Depiction of Animal Cruelty law was originally created in response to videos featuring dog-fighting matches and 'crush' videos - a type of fetish video involving women (many in high stiletto heels) stomping and crushing to death small animals such as mice, rabbits, kittens and even puppies. The case which brought the law to its disheartening end involved Robert J. Stevens, a self-identified authority on pit bulls who was sentenced to 37 months for selling videotapes showing dog fights; Stevens himself never participated in any of the dog fights - some of which reportedly took place in Japan where dog fighting is legal - but under the 1999 law, Stevens was found guilty of trafficking in 'depictions of animal cruelty.' Admittedly, I have not browsed through the endless court papers documenting the case against Mr. Stevens that may reveal details explaining the court's overwhelming decision; likewise, I have not seen any of Mr. Stevens’s videos and therefore do not have a first-hand judgment on whether the images involved animal cruelty. In an interview with NPR, Stevens claimed to be an avid pit bull lover and stated his videos celebrated the "'gladiator' tendencies of pit bulls" and he edited the footage to remove the "bloody, gory stuff." This begs the question: is dog fighting not cruel by legal definition if the animals survive and are only injured or maimed? Furthermore, does a video of a dog fight, edited to remove all graphic violence, fall short of the legal definition of animal cruelty because we can't actually see the violence and maiming that actually took place?


I believe in the legal shrewdness of our Supreme Court; one must assume the law was crafted in such a way and with such breadth - and Chief Justice Roberts argued as such - that its violation of certain first amendment rights under the law, i.e. the right to express unpopular ideas, made irrelevant its purpose in protecting the rights of animals under a previously established and widely accepted law. Dog fighting and animal cruelty is illegal in all 50 states. And yet the expression of such acts in videos and photos is not only legally acceptable, but so also is profiting from the sale of such videos? According to Roberts, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.” But does government have no power to close the loophole on a law that provides a haven for illegal acts to continue?


It is a unique and treasured thing in this country and most modern democracies to protect the right to speak those whose beliefs and preferences we would prefer be silenced. But why protect the right to express in video a fetish which is illegal in practice? To each their own in the bedroom, but I'm quite sure (and by God, I hope) that the sale of alleged "snuff" videos (extreme sadomasochistic pornographic videos in which one of the participants is in fact murdered during the sexual encounter) would constitute a crime, even if the person selling the videos was not involved in its creation. A severe example, but the principle is the same - the same principle that allows us to prosecute those who sell images or videos of child pornography but do not themselves engage in it.


In creating the law, the government argued the same point regarding child pornography, but Chief Justice Roberts claims that it is a “a special case” because the market for it is “intrinsically related to the underlying abuse." According to the Humane Society of the United States, the Depiction of Animal Cruelty law all but ended the market for crush videos in the immediate years following its inception; Stevens case, however, led to a resurgence of the videos online even while the verdict had yet to be decided. Now the law is null and void. It is unthinkable to imagine the uptick in production and demand for these videos now that those facilitating their sale and distribution can no longer be prosecuted.


In Justice Alito's dissent, he stated the court’s decision in practice only served to protect "a depraved entertainment;" Chief Justice Roberts counter-argument stated that the law was so broadly written that it would make it illegal to sell hunting videos in the District of Columbia where hunting is illegal, and "the demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude.” But then why declare the entire law unconstitutional? In the NPR interview, the executive director of the Professional Outdoor Media Association, Laurie Lee Dovey, claimed it was unlikely that the government could write a law that prevented animal cruelty without infringing on the rights of hunting and fishing fans: "We must in America rely on our First Amendment rights to speak freely and to discuss things that are not comfortable to discuss. That's what makes us America." Call me un-American, but I find it unfortunate that the brutal, fatal crushing of a kitten by stiletto for someone’s amusement is considered akin to something "not comfortable to discuss."

No doubt, it is always invigorating to see the process of checks-and-balances of power at work. I make no claims of being a lawyer or a legislative expert, and even in instances of disagreement, I intrinsically want to trust the judgment of the court to be constitutionally sound. Perhaps the issue is that Mr. Stevens should have never been convicted in the first place under the Depiction of Animal Cruelty law, which has now led us to its unraveling today. Perhaps the Supreme Court should have recognized, as Justice Alito described, the practical intent of the law, "not to suppress speech, but to prevent horrific acts of animal cruelty." Perhaps Congress should have taken more care to craft legal constraints and exceptions to the law that would appease hunting enthusiasts and survive first amendment scrutiny. Chief Justice Roberts wrote, "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs," adding that “our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it." I can't help but find it interesting that a law Chief Justice Roberts found so "alarming" in breadth passed in the House 372-42 and in the Senate by unanimous consent. Perhaps, to the contrary, Congress found the protection of animals from such useless harm so obviously worth it.

*H.R. 5092., a narrower law written "to end the intentional crushing, burning, drowning and impaling of puppies, kittens and other animals for the depraved purpose of peddling videos of such extreme acts of animal cruelty for the sexual titillation of viewers" was introduced on Wednesday by Reps. Elton Gallegly, R-Calif., James Moran, D-Va., Earl Blumenauer, D-Ore., and more than 50 other Representatives. I encourage everyone to reach out to your Congressional representatives and Senators to show your support for this statute, or contact the Humane Society of the United States to see how you can help stop animal cruelty.