By Wayne Pacelle
This fall, for the first time in more than 15 years, the U.S. Supreme Court will hear arguments in a major case involving animal cruelty. The case concerns infamous dogfighting videographer Robert Stevens, who was convicted by a Pennsylvania jury of violating a 1999 federal law banning the commercial sale of videos depicting extreme and illegal acts of animal cruelty.
The Depiction of Animal Cruelty Act—authored by Congressman Elton Gallegly (R-Calif.)—was prompted in part by an HSUS investigation that uncovered an underground subculture of “animal crush” videos, where scantily clad women, often in high-heeled shoes, would impale and crush to death puppies, kittens and other small animals, catering to those with a sexual fetish for this aberrant behavior.At the same time The HSUS filed its brief, Florida Attorney General Bill McCollum and 25 other state Attorneys General filed a brief arguing in support of banning these gruesome depictions, which merit no protection under the First Amendment.
The Attorneys General’s brief—which emphasizes how animal cruelty is often closely associated with other serious crimes such as gang activity, drug dealing, and violent felonies—is a powerful statement in support of The HSUS’s humane mission, and a reminder of how far we have come in a very short time in enlisting broad, mainstream support for the prevention of animal cruelty.
We garnered additional support from Washington Legal Foundation and Allied Educational Foundation, highly conservative public policy organizations, which also filed a brief arguing that Congress rightly banned trafficking in depictions of animal cruelty, and that doing so does not violate the First Amendment. As a frequent litigant challenging laws as violating First Amendment rights, the Washington Legal Foundation’s brief is likely to carry substantial weight with the Court.
At the other end of the political spectrum, New York University’s Center on the Administration of Criminal Law also filed a brief in support of banning depictions of illegal acts of animal cruelty. The Center is a leading academic think tank, which frequently weighs in on important governmental issues before the high court.
As explained in all of the briefs filed Monday, the Depiction of Animal Cruelty Act criminalizes depictions of animal cruelty that have no significant redeeming political, social, or artistic value. This is essentially the same test for stopping the production and sale of certain forms of human obscenity. There is no reason that videos depicting cruelty should get more First Amendment protection than pornography does.
Indeed there are strong arguments that such material, like child pornography, should not be entitled to any First Amendment protection at all. The makers and sellers of these videos are not making an argument or expressing a viewpoint—they are simply profiting from extreme cruelty, from predation on the weakest among us. This is a far cry from the values that the First Amendment is supposed to protect. We wouldn’t allow people to sell videos of people actually abusing children or raping women, and the same legal principles are at hand with malicious acts of cruelty, which are a felony in some form in every state.
Florida Attorney General McCollum should be commended for organizing Monday’s strong showing of the nation’s top law enforcement officers. When the Court convenes this fall, it won’t just hear arguments from animal advocates, it will be presented with a diverse cross-section of law enforcement officials, academics, and ideologically diverse public policy groups all saying the same thing: The trafficking in videos of extreme and illegal acts of animal cruelty finds no refuge in the First Amendment, and will not be tolerated by the American people.