Does Cruelty to Animals Ever Have Artistic Value? Update on Animal Cruelty Video Ruling

BlogHer Original Post

When the Supreme Court struck down a 11-year federal ban on animal cruelty videos on April 20, shocked cries of "Ruh-roh!" echoed throughout the land. The next day, Congressman Elton Gallegly (D-CA), author of the original bill, ducked into a phone booth, changed clothes and swiftly drew up a bi-partisan bill with Congressman Jim Moran (R-VA) to counter-act that ruling. Together, they signed up 55 of their colleagues to co-sponsor.


Lab Rabbits

"Violence is not a 1st Amendment issue; it is a law enforcement issue. You are not allowed to cry 'fire' in a theater; you are not allowed to possess or distribute child pornography. You shouldn't be able to create and distribute videos that glorify the senseless killing of defenseless animals."
--U.S Rep. Elton Gallegly's letter to colleagues

The bill, H.R. 5092, is now in its first step in the legislative process, "referred to committee." In this case, the House Committee on the Judiciary. Sadly, this is where many bills and resolutions go to die, which is why nagging (phone calls, emails, petitions) comes into play. (To find out who to bug, go here. )

On its face, the SCOTUS's (8-1) ruling makes the men/women in black seem like heartless souls who run over puppies for fun. Not the case. As with so many WTF? rulings, it is about the First Amendment and while I appreciate their dogged defense of my rights to blog dogs (or whatever), misdirected rulings like this give me paws.

"The First Amendment itself reflects a judgement by the American people that the benefits of its restrictions on the government outweigh the costs. Our Constitution forecloses any attempt to revise that judgement simply on the basis that some speech is not worth it."
--Chief Justice John G. Roberts, Jr.

Those of you who deal with the myriad secret door exceptions of our legal system, I salute you. I could not stomach it. This is a world literal-in-the-extreme where there can be no wiggle room for assumptions. Kinda like accounting, which also gives me hives.

In case you missed it, here's a quick historical summary the case:

  • Gallegly pens the original bill, Depiction of Animal Cruelty Act, and it passes without opposition in 1999. Bill Clinton signs it into law.
  • According to the U.S. Humane Society, the crush video market dries up. (Such videos depict young woman doing terrible things to small animals while wearing spiked heels. They sell for about $300 each.)
  • In 2004, Robert J. Stevens of Pittsville, VA is indicted under this law for creating and selling three video tapes which depict dog fighting, including one that showed a dog killing a farm pig. (Stevens had made $20,000 by selling nearly 700 videos.)
  • Stevens files a motion to dismiss the indictment, citing his right to free speech.
  • In November 2004, the District Court of the Western District of Pennsylvania denied his request.
  • In January 2005, Stevens was convicted by a jury after a deliberation of 45 minutes.
  • Stevens files an appeal with the Third Circuit court which overturns the ruling as unconstitutional.
  • The Obama administration requests that the SCOTUS review the case and overturn the ruling.
  • On April 2009, the U.S. Supreme Court agreed to review the case.
  • Arguments were made before the court on October 6, 2009.
  • United States v. Stevens goes before the Supreme Court on October 6, 2009.
  • On April 20, 2010, SCOTUS sides with Stevens and the earlier ruling is upheld.
  • "The notion that Congress can suddenly strip a broad swath of never-before-regulated speech of First Amendment protection and send its creators to federal prison, based on nothing more than an ad hoc balancing of the 'expressive value' of the speech against its 'societal costs' is entirely alien to constitutional jurisprudence and a dangerous threat to liberty."
    --Patricia Millett, lawyer for Robert Stevens

    Confused? Here's the main reason why this happened: The language in Gallegly's original law is too broad. Some excerpts:

    Definition of animal cruelty: "A living animal is intentionally maimed, mutilated, tortured, wounded or killed." 

    Anyone who "creates, sells or possesses a depiction of animal cruelty" for commercial gain can be thrown in jail for up to five years.

    Exclusions: "Any depiction that has serious religious, political, scientific, educational, journalistic, historical or artistic value." (Basically, mirroring the language of the Miller test.)

    Seems clear, right? Not so much. What about the hunters?

    Chief Justice Roberts offered a hypothetical. Since hunting is illegal in DC, the law as it is currently written, would make the sale of hunting magazines or videos illegal. "The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude," he wrote.

    "(If the First Amendment were rewritten) every time an unpopular or distasteful subject was at issue, we wouldn't have any free speech at all. Animal cruelty is wrong and should be vigorously prosecuted, but as the court found, sending people to prison for making videos is not the answer."
    --David Horowitz, executive director of the Media Coalition

    Finally, something to think about: Listed below are organizations that signed an amicus brief (a document that states an alliance) in support of David Stevens:

    The New York Times, NPR, American Society of News Editors, Association of Alternative Newsweeklies, Citizen Media Law Project, MediaNews Group, National Press Photographers Association, Newspaper Association of America, Newspaper Guild, Outdoor Writers Association of America, Radio-Television News Directors Association, Society of Environmental Journalists, Society of Professional Journalists.

    ~ClizBiz

    BlogHer Contributing Editor, Animal & Wildlife Concerns, Proprietor, ClizBiz

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