By Wayne Pacelle
The U.S. Supreme Court dealt animals a serious blow in its ruling today, upholding an appellate court decision that invalidated the federal law banning the commercial sale of videos showing illegal and extreme acts of animal cruelty. The Court got hung up in a stream of hypothetical scenarios, imagining that the law as worded might sweep up the sellers of hunting, bullfighting, and other videos that the federal lawmakers never intended to address.
With Chief Justice John Roberts writing for the eight justices in the majority, the Court ruled that the statute was substantially overbroad, saying that the criminal prohibitions in the statutes were of “alarming breadth.” The justices did conclude by saying we “do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We only hold that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.” The Supreme Court also reinforced the important and compelling government interest in protecting animals from cruelty and abuse, noting that “the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies.”
Justice Samuel Alito dissented, noting that the majority has struck down "a valuable statute that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of crush videos, a form of depraved entertainment that has no social value." Justice Alito explained that "the animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country."
With the Court issuing a disappointing albeit carefully crafted decision, it seems that Congress can step in and write a more narrowly tailored federal statute to prohibit the commercial sale of videos depicting extreme and illegal acts of cruelty. Clearly, it should not be legal to stage a dogfight in your basement and then sell the video of this criminal action. It is illegal to molest a child and sell a video of this sort of child pornography, and the same should be true for the most extreme and widely criminalized acts of animal cruelty.
It was an HSUS investigation in 1999 that uncovered Internet traffic on a large scale involving the crush videos, where women in high-heeled shoes impaled, crushed, or stomped small mammals and birds for the sexual titillation of viewers. The public disgust over this horrifying subculture prompted Congress to take action, with the measure sponsored by Congressman Elton Gallegly passing the House with only 41 “no” votes and then unanimously passing the Senate. President Bill Clinton signed the legislation in 1999. Soon after, it became impossible to find these videos on the web, affirming the value of the law. The HSUS and prosecutors then began to focus on the sale of dogfighting videos, since enthusiasts profited from and enjoyed making and watching these sadistic tapes. It was the prosecution of known dogfighting enthusiast Robert Stevens that led to the Supreme Court ruling today.
We have a consensus in society that animal fighting and malicious animal crush videos constitute cruelty. In order to give those values meaning, we need a set of laws that not only prohibit the core conduct, but also the sale of videos showing the illegal conduct. People victimize animals to make these videos, and to profit from them. If we cannot criminalize that behavior, we will have little hope of halting this disgusting and morally abhorrent activity.