Videos of Small Animals Being Crushed by Women in High Heels Are Protected Free Speech?

This week the Supreme Court handed down an eight to one ruling that, depending on your priorities, either reflects its total, unwavering belief in the primacy of the First Amendment, or else proves once and for all that the justices have no soul -- except for maybe Samuel Alito.

The case: U.S. v. Stevens (pdf). The plaintiff: Virginia resident Robert Stevens, jailed for selling dogfighting videos. The law: 1999 federal legislation punishing anyone who "knowingly creates, sells or possesses a depiction of animal cruelty" for profit.

The original motivation for the law was to prevent a brand of pornography known as "crush videos."

"Crush videos," the Court explains, echoing the argument brought forth by U.S. Solicitor General Elena Kagan (who is on Obama's shortlist to replace Justice Stevens) "often depict women slowly crushing animals to death 'with their bare feet or while wearing high heeled shoes,' sometimes while 'talking to the animals in a kind of dominatrix patter' over '[t]he cries and squeals of the animals, obviously in great pain.' Apparently these depictions 'appeal to persons with a very specific sexual fetish.'"

Sickening, yes, but according to the Court, sickening is besides the point. This week, the justices agreed, almost unanimously, that the government's attempt to stamp out such vile acts 10 years ago was an example of legislative overreach. However well-intentioned, Chief Justice John Roberts wrote for the majority, the law "creates a criminal prohibition of alarming breadth," which, in this case, did not even apply to crush videos themselves, but, rather, to a man who "ran a business, 'Dogs of Velvet and Steel,' and an associated Web site, through which he sold videos of pit bulls engaging in dogfights and attacking other animals."

Among these videos were Japan Pit Fights and Pick-A-Winna: A Pit Bull Documentary, which include contemporary footage of dogfights in Japan (where such conduct is allegedly legal) as well as footage of American dogfights from the 1960's and 1970's. A third video, Catch Dogs and Country Living, depicts the use of pit bulls to hunt wild boar, as well as a "gruesome" scene of a pit bull attacking a domestic farm pig.

The government tried to argue that these kinds of videos are of so little societal worth that they do not merit First Amendment protection. What's more, the 1999 law included a key provision that would exempt from prosecution depictions of animal cruelty that contain "serious religious, political, scientific, educational, journalistic, historical, or artistic value." (Here, the word "serious" got it in trouble with the majority -- "'serious' should be taken seriously" -- which pointed out that "most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value), but it is still sheltered from government regulation.")

In his decision, Roberts acknowledged that animal rights are worth protecting and there is jurisprudence that shows this, going back to 1910. "As the Government notes, the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies … ('No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man's use')." Unfortunately, he wrote, "we are unaware of any similar tradition excluding depictions of animal cruelty from 'the freedom of speech' codified in the First Amendment, and the Government points us to none."

The debate, then, comes down a gruesome act versus a depiction of a gruesome act -- a crucial difference for journalists, publishers and documentary filmmakers. (Fourteen news media organizations filed an amicus brief on behalf of Stevens, holding that "the exceptions clause" of the 1999 law "is not nearly broad enough to protect legitimate news coverage" and arguing that "it is this very interest in protecting animals from abuse that makes speech about their treatment so valuable.")

It was this "exceptions clause" that, ultimately, failed to pass constitutional muster. "The only thing standing between defendants who sell such depictions and five years in federal prison -- other than the mercy of a prosecutor -- is the statute's exceptions clause," Roberts wrote.

"Quite apart from the requirement of "serious" value … the excepted speech must also fall within one of the enumerated categories. Much speech does not," Roberts pointed out, adding, philosophically, "Most hunting videos, for example, are not obviously instructional in nature, except in the sense that all life is a lesson."

What's more, in a place like Washington D.C., where hunting is illegal, the sale of magazines or videos depicting hunting would be considered a crime. "The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude."

Free Speech Trumps Animal Rights

It has been almost 30 years since the Court declared a specific exception to the First Amendment. Among the ones that do exist are obscenity, defamation and fraud; in 1982 the Court also ruled that child pornography is not protected speech, a decision it upheld in 2008.

In his lonely 20-page dissent, Justice Alito drew a parallel between the sale of child pornography and the sale of crush videos, arguing that while the First Amendment protects free speech, "it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes."

"Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct," he wrote. "The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos."

The decision by the Court, Alito warned, "has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production."

He may have a point. According to Wayne Pacelle, president of the Humane Society of the United States, when Bill Clinton first passed the law in 1999, it "almost immediately dried up the crush video industry."

But as Adam Liptak wrote this week in the New York Times, Clinton himself "expressed reservations, prompted by the First Amendment," when he first signed the bill into law, asking the Justice Department to only use it to prosecute "wanton cruelty to animals designed to appeal to a prurient interest in sex."

Instead, "prosecutions under the law appear to have been pursued only against people accused of trafficking in dogfighting videos," rather than those who have actually carried out dogfights (or, in the case of Michael Vick, who got less jail time than Stevens, dogfighting rings). Dogfighting itself is already illegal in all 50 states.

The Supreme Court's ruling leaves room for the possibility that a narrower version of the law could be written, one that would not violate the Constitution. As it stands, Roberts wrote, the Court does not have "freewheeling authority to declare new categories of speech outside the scope of the First Amendment."

The Court's decision shouldn't come as too much of a surprise to anyone who witnessed or read the oral arguments last fall, entertainingly summarized by Slate's Dahlia Lithwick in an article subtitled "The Supreme Court mauls the law banning animal-cruelty videos." (In her depiction, Principal Deputy Solicitor General Neal Katyal was a hapless creature before nine eager predators, who, one by one, swooped in on the attack. The ruling, it turns out, reflects this.)

Others might recall the justice's weird fixation on a particular theoretical during arguments: Would the First Amendment protect a live, pay-per-view "human sacrifice channel"? Anyone seeking a definitive answer on this will be disappointed by the ruling.

Surprising or not, the Stevens ruling is significant in that it, along with the Court's hugely controversial decision in Citizens United, which bestowed free speech rights on corporations, hints at the direction the Supreme Court is taking when it comes to the First Amendment. These cases, wrote Adam Liptak, "suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech."


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