Education and Resources
Decision on US v. Stevens Part 1: Not As Devastating as You May Think
By Katie Bray
Robert J. Stevens, an infamous dogfighter and dogfight promoter, prevailed today on his claim to profit from the sale of instructional dogfighting videos. Stevens shipped his dogs to Japan to fight against other dogs and sold videos that taught others how to stage the same cruel fights. These battles often ended in a dog’s death, disembowelment, and incomprehensible injuries. Stevens claimed his videos were “speech” protected by our Constitution.
Whether it’s some crazed church group harassing families of soldiers killed in combat, racial slurs, child pornography, or dogfighting videos, we all seem to get it. It’s wrong and we know it. Why is it so tough for the courts?
Well, it’s this pesky little thing called the First Amendment. Remember, the First Amendment also gives anti-cruelty organizations the right to show videos by dogfighters to bring awareness to this heinous crime. It permits documentaries about dogfighting and exposure of the people involved.
But we all know the difference between Stevens’ instructional dogfighting videos and the videos that bring awareness to the deplorable crime of dogfighting. Even a Supreme Court Justice, Potter Stewart, said “I know it when I see it.” FN1
So why doesn’t everyone else know it when they see it?
Therein lies the problem. The Government contends that depictions of illegal acts of animal cruelty necessarily lack expressive value and may be regulated as unprotected speech. FN2 The United States Supreme Court disagreed and struck down 18 U.S.C. § 48 as unconstitutional.
The Court took notice that the prohibition of animal cruelty itself has a long history in American law. It simply has difficulty distinguishing between animal cruelty itself and “depictions” of animal cruelty. FN3
First, the Court analyzed the government’s proposed balancing test: Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.
The Court admits that it has done this before. It notes the historically unprotected categories of speech are “of such slight social value, that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” FN4
Second, the Court considered a balancing test in relation to the “market” of the speech. In New York v. Ferber, the Court expressed that the State of New York had a compelling interest in protecting children from abuse, along with the fact that the market for child pornography was “intrinsically related” to the underlying child abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the nation.” FN5
Any rational person can draw the parallels between the Court’s decision in Ferber and the videos at issue in Stevens. Of course dogfighting videos are intrinsically related to actual dogfighting. But to prevail, the Government must make a successful argument that depictions of animal cruelty should fall into the same category as Ferber, or set forth a compelling argument for a new category limiting free speech.
A test developed in 2002 for limiting free speech says the speech at issue must demonstrate “a proximate link to the crime in which it came.” FN6 Thus, the Government had the unspoken burden of essentially proving that the market of dogfighting videos perpetuates the illegal act of dogfighting itself. The Animal Legal Defense Fund’s brief spells it out perfectly:
“[I]n addition to the direct economic benefits derived from the sale of these videos, an additional economic incentive is that dog fighters use the videos to promote the prowess of their animals, thus giving them access to more money in the form of larger purses and breeding fees.” FN7
The Court clearly ignores this, among other factual evidence that dogfighting videos drive the illegal act of dogfighting.
Because the Government failed to establish a free speech exception, the majority (for reasons described in the next part: “How to Draft a Constitutional Anti-Cruelty Statute”) moves on to analyze the Stevens’ challenge under the existing First Amendment doctrine and ultimately finds §48 unconstitutional.
THE FATE OF DOGFIGHTING AND DOGFIGHTING VIDEOS POST-STEVENS
Don’t freak out just yet. Hindsight is always 20/20, especially when you’re looking through the lenses of the US Supreme Court.
The Court does not have the power to enforce its decisions. Remember after the Brown v. Board of Education of Topeka (347 U.S. 483 (1954)) decision? There was no immediate desegregation of schools. Similarly, with the Stevens decision, there won’t be crush videos on Netflix tomorrow. Congress simply needs to go back to the drawing board and redraft §48 with more definite clauses and definitions. As soon as it is redrafted and passed, the US can get back to prosecuting and imprisoning those members of society who have a reckless disregard for life and will most certainly rot in the fiery depths of hell.
See what Congress is doing about it here.
Check out Game Dog Guardian’s post tomorrow: “How to Draft a Constitutional Anti-Cruelty Statute”
FN 5: (458 U.S. 747 (1982) limiting the First Amendment’s reach in child pornography), (Id., 761-762).
Decision on US v. Stevens Part 2: How to Draft a Constitutional Anti-Cruelty Statute
By Katie Bray
(For Part 1: Decision Not as Devastating as You Think scroll below)
In October of 2009, GDG traveled to the United States Supreme Court and witnessed oral arguments in this landmark case. You can find a brief history of the Stevens case here.
Justice Sotomayor came out swinging. She immediately wanted to know the difference between Stevens’ videos and a popular animal advocacy dogfighting documentary entitled “Off the Chain” by David Roma.
Chief Justice Roberts questioned the ability of prosecutors to discern the message of each and every video depicting any type of animal cruelty.
While the instant issue before the Court was extending the statute to dogfighting videos, Justice Alito could not get an answer out of Stevens’ attorney when he asked if a woman in high heeled shoes, stomping a small animal to death for sexual and entertainment purposes, should truly be protected by our Constitution?
Because the statute could be extended to various depictions of animal cruelty, the Court had to make analogies to understand just how far the government wanted the statute to go. The comparisons the justices made to dogfighting during oral arguments ranged anywhere from bullfighting videos to a hypothetical “human sacrifice channel.”
Justice Stevens likened his appalling instructional dogfighting videos to bow hunting out of season, and Justice Scalia grilled the government’s attorney on Stevens’ right to promote his message and sell his videos nationwide.
Interestingly, the Court sparsely acknowledged the activity in the videos was illegal, which is particularly noteworthy since it was compared to legal activities like hunting, and the Court barely touched on the state’s interest in preventing animal cruelty.
HOW TO DRAFT A CONSTITUTIONAL DOGFIGHTING STATUTE
Problem number one. In a statute prohibiting any “depiction of animal cruelty,” the statute ought to require that the conduct depicted be “cruel.” While the text of §48 says any animal “maimed, mutilated, [and ] tortured,” applies to cruel conduct, the additional words “killed” and “wounded” do not. Thus, if we infer cruelty in the statute, it would also mean euthanizing could be cruel or running a dog in an agility trial where it is “wounded” could be cruel. Perhaps the statute should read “cruelly and intentionally kill” or maybe even “cruelly and intentionally wound with wanton disregard for life.” Until there is more definition and specificity to what exactly is cruel (in an animal cruelty statute) §48 will be struck down.
The second issue is the word “illegal.” While this is a stretch, the court suggests the text of §48 fails to distinguish itself from livestock regulations and hunting and fishing rules that, as the court casually says, are intended to protect humans by “preventing accidents” and “preserving animal populations.” F1 The court is concerned that a depiction of entirely lawful conduct (say, bowhunting in Louisiana) may find its way onto a depiction previewed in another state where the conduct is unlawful (like Washington D.C.). The Court notes that there is a “substantial disagreement” on what different states regard as cruelty to animals. However, it completely glossed over the fact that the cruelty depicted in the videos at issue in Stevens is uniformly prohibited in all 50 states and Washington D.C. To overcome this issue with §48, drafters must include the definition of the specific depiction of cruelty (e.g. dogfighting) that excludes the public safety laws intended for wildlife and hunting, and then address the issues of the jurisdictional challenges.
Justice Samuel Alito’s fabulous dissent in this case addresses this very issue, even going so far as to prepare a chart demonstrating where each state defines the word “animal” and specifically excludes from the definition “wildlife” and “livestock.” (Stay tuned to Game Dog Guardian for the full analysis of the dissent, which is particularly interesting.)
Third, the “exceptions clause” by the Government allows news reports with journalistic value, pictures with historical value, instructional videos with educational value, and depictions with religious value or artistic value. However, the court says these exceptions are unrealistically broad. FN2 Thanks to the amicus curiae brief of the Safari Club, most hunting videos are not instructional, but rather for “entertainment value.” The NRA concurs by saying most of their content is “recreational” in nature. The Government offers no explanation to why these depictions of hunting are not being prosecuted, nor does the Government counter the argument that these hunting videos do not fall into any of the categories under the exceptions clause. Without a more definite exceptions clause or specific revisions to §48 that are limited to defining dogfighting and crush videos, to the Court, hunting and dogfighting are one in the same. FN3
Finally, the court seems to find some limited constitutionality with regard to §48 as it applies to crush videos. In 1999, the Executive Branch announced it would construe §48 to cover “wanton cruelty to animals designed to appeal to a prurient interest in sex.” FN4 While this language covers crush videos, it does not reach dogfighting videos. To read §48 the way the Government wants it to read, the Court says §48 “requires rewriting.” FN5
On Tuesday, April 20, 2010, Rep. Elton Gallegly (R, CA) said he hopes to get the redraft to Congress by next Tuesday, April 27, 2010. See what Congress is doing about the ruling here.
In the next part we will discuss Justice Alito's dissent.
Decision on US v. Stevens Part 3: Alito’s Dissent: Answering All Your WTF’s
By Katie Bray
(For Part 1: Not as Devastating as You May Think and Part 2: How to Craft a Constitutional Anti-Cruelty Statute scroll below)
Justice Alito is the lone dissenter in this case and brings several strong arguments to the table. By now, we’ve all seen the articles explaining how Justice Alito’s Springer Spaniel comes to work with him in D.C. In fact, “Zeus” had to have helped Alito in this well reasoned dissenting opinion. With that in mind, as soon as I am appointed Supreme Court Justice, you can bet I will bring my pit bulls with me to walk the great marble halls of the United States Supreme Court.
Alito reminds us that because an overly broad law can actually deter constitutionally protected speech, Stevens is allowed to argue that §48 not only violates his speech, but may also violate the First Amendment rights of others. FN1 Alito says traditionally, the court considers a statute’s application to real-world conduct, not fanciful hypotheticals. (e.g. Justice Scalia’s “human sacrifice channel” mentioned in oral arguments.) Alito emphasizes that Stevens bears the burden of demonstrating, from the text of §48 and from actual fact, that the law is overly broad and thus, unconstitutional. FN2 Frustrating this traditional consideration is that the Court declined to decide §48 as applied to dogfighting videos and crush videos, but rather as it may apply to depictions of hunting and animal slaughter for food.
First, Justice Alito distinguishes between hunting and dogfighting by pointing out that hunting is legal in all 50 states and §48 only applies to a depiction of conduct that is “illegal in the jurisdiction in which the depiction is created, sold, or possessed.” FN3 Consequently, §48 could never apply to hunting. Ever. FN4
Second, Alito addresses the jurisdictional problems mentioned in the majority opinion with regard to the “disagreements” between states on the definition of “animal cruelty.” Accompanying Alito’s dissent is a chart that outlines every single state’s animal cruelty statute. “As the following chart makes clear, virtually all state laws prohibiting animal cruelty either expressly define the term “animal” to exclude wildlife or else specifically exempt lawful hunting activities.” FN5 With pressure from the NRA and it’s cohorts, you can be sure the Court conveniently ignored what Justice Alito, his law clerks, and Zeus diligently found.
Alito also notes that even if there were substantial disagreements between states, (despite the cleverly worded amicus brief by the NRA) hunting depictions fall within the “exception clause” of §48. FN6 He supports this with five separate Presidential proclamations that demonstrated the historical, scientific, and educational value of hunting through conservation efforts. FN7
Third, “[i]t is undisputed that the conduct depicted in crush videos may constitutionally be prohibited.” FN8 Justice Alito rightly points out that “The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.” FN9 Any dogfighting or crush video recorded in this country records the actual commission of a criminal act (again, in all 50 states). Those recording the acts are naturally criminally culpable as aiders and abettors or conspirators. FN10 It follows that the criminal acts in the videos cannot be prevented without first targeting the creation of the videos themselves. The Government has a strong interest in prosecuting this conduct and §48 is an essential part of this interest.
Justice Alito wraps up his opinion by reminding us (once again, in case you didn’t get it the first six times) that not only is dogfighting illegal in all 50 states, it is also punishable by federal law. FN11 Stevens’ videos serve as instructional and training videos for the likes of Michael Vick (gag) and are essential to the subculture of dogfighting itself. Alito makes an amazing point with his in-depth analysis of the culture of dogfighting. “For these dogs…the suffering lasts for years rather than minutes.” FN12
Because the Government and states have a substantial interest in protecting animals from cruelty outlined in clear constitutional laws, and because depictions of animal cruelty serve to propogate animal cruelty, §48 should be upheld. Furthermore, since there is no dispute that hunting is legal in all 50 states, and hunting clearly falls in the exceptions outlined in §48, there is no valid argument to a real-world application of the statute that would invalidate it. Still, the majority asks for a more succinct law that focuses on what §48 was intended to do: Combat horrendous crush videos and vigorously prosecute those who perpetuate dogfighting by recording the deplorable acts. Rest assured, Congress is back at it and we expect to see a more narrowly focused §48 in the very near future.
Just knowing that Stevens is right back to profiting off people like Michael Vick…is anyone else up for the human sacrifice channel?