Justices toss law banning videos of animal cruelty

From the Spring 2010 issue of The News Media & The Law, page 17.

The U.S. Supreme Court in April ruled that legislation intended to curb the production and distribution of animal-cruelty fetish videos — but were instead used to prosecute those who sold and distributed videos that included animal fights — was so broadly written that it did not pass constitutional muster.

In an 8-1 decision, the court found that a federal statute that provided up to five years in prison for anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain” violated the First Amendment.

The legislation has raised flags since it was enacted in 1999. It was intended to ban so-called “crush videos” — fetish videos that showed women in high heels or bare feet stepping on small animals as a form of torture, which sometimes resulted in death. When then-President Bill Clinton signed the law, he instructed prosecutors to enforce it only against images “designed to appeal to a prurient interest in sex” so as not to run afoul of the First Amendment.

Despite the law’s intent and Clinton’s directive, there was never a prosecution involving an actual crush video. Instead, the very few times the law was utilized, prosecutors targeted people who sold or distributed images of animal fights.

One of those individuals was Robert Stevens, the first defendant to go to trial for violations of the law in United States v. Stevens. Stevens was convicted of distributing three videos showing dog fighting or hunters using dogs to catch wild boars, and was sentenced to more than three years in prison. The U.S. Court of Appeals in Philadelphia (3rd Cir.) overturned Stevens’ conviction, stating that the law violated the First Amendment.

The Supreme Court agreed. The justices reasoned that if the law was allowed to stand, it could easily be applied to any and all depictions of killing animals, such as hunting videos and pictures of livestock practices. In the majority opinion, Chief Justice John G. Roberts Jr. wrote that the law as written was “a criminal prohibition of alarming breadth.”

The law could be applied to not only crush videos or dog fighting, but also to “bullfighting, sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and for, I think somewhere I found, the stuffing geese for pâté de foie gras,” Justice Stephen Breyer told the government in oral arguments last October.

More important than the court’s conclusion that the legislation as written was overbroad, the justices rejected the government’s suggestion that Congress had merely exercised its “legislative judgment” to find a certain category of speech so devoid of societal value it was not protected by the First Amendment. The court called this proposition “startling and dangerous” and said that the Constitution protected more than just “categories of speech that survive and ad hoc balancing of relative social costs and benefits.”

“The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it,” the court said. It also pointed out that when it had previously identified categories of speech as unprotected by the First Amendment, it was not done “on the basis of a simple cost-benefit analysis.”

The justices also balked at the government’s claim it would only use the law to prosecute cases of extreme cruelty, pointing out that the case against Stevens was in and of itself “evidence of the danger in putting faith in government representations of prosecutorial restraint,” given that the original legislative intent was to target fetish material.

The only justice persuaded by the government was Samuel A. Alito, Jr., who wrote in his 28-page dissent that although he believed the record would show that the law would ban a “substantial quantity of protected speech . . . [t]he criminal acts shown in crush videos cannot be prevented without targeting the conduct prohibited by [the statute].”

Importantly, the ruling protects the news media’s right to use animal abuse images in stories. The Reporters Committee for Freedom of the Press wrote a friend-of-the-court brief on behalf of 14 press groups that argued the news media “often expose the abuse of animals, participate in the national debate over the proper treatment of them, and cover commonplace activities involving animals such as hunting and fishing.”

Although the legislation provided an exception from prosecution for depictions with a “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” this clause would have done little to protect journalists. There was no requirement in the legislation that the work at issue be considered as a whole; so “serious” journalism could very well be subject to an attack if one isolated scene was found offensive.

In fact, two journalists using the same images may have been treated very differently, depending on whether the use of the images fell under the exceptions clause or not — a decision that would have been left to the prosecutor’s discretion.

“If someone is presenting images of wounding or killing animals, but doing so for the intention of raising consciousness of animal cruelty, that person would be protected by the statute,” said Bob Corn-Revere, a partner at Davis Wright Tremaine and co-counsel to Stevens. “But someone using the exact same images without the same mindset would be labeled a criminal. It’s a classic example of viewpoint discrimination, which is prohibited by the First Amendment.”

In its brief, the Reporters Committee explained “this allows a prosecutor to challenge a news media report not because the report as a whole lacks value, but because he or she objects to a particular image used in the report as sensationalistic or unnecessary to the report.”

Corn-Revere also said that the court’s rejection of the exceptions clause and its unwillingness to create new categories of protected speech was critical for the media. He noted that although this law targeted fringe and rare material, the case was very important because of the principles on which it was based.

“The government allocated to itself tremendous discretion in determining what speech is protected,” he said.

Only one day after the Supreme Court issued its ruling, Rep. Elton Gallegly, R-Calif., along with Rep. James P. Moran, D-Va., introduced a new law that is specifically limited only to crush videos where an animal is “tortured, maimed, or mutilated,” and also specifically does not apply to depictions of hunting. The new bill, one of two proposed, has 315 cosponsors. Gallegly helpd write the original 1999 law.