Court to weigh animal cruelty vs. free speech


The video images were disturbing -- a tiny white kitten singed with the flame from a lighter; a gray cat struggling beneath a woman’s spiked heel; pit bulls tearing into a trapped animal.

The Supreme Court has often said that freedom of speech includes ugly and foul language. But this fall the justices will be looking at video clips like these to decide whether selling films of dogfights or animal torture is protected from prosecution under the 1st Amendment.

The dispute, expected to be heard in early October, has driven a wedge between traditional free-speech advocates and defenders of the humane treatment of animals.


Book publishers, movie makers, photographers, artists and journalists have joined the case on the side of a Virginia man who was convicted of selling videos of dogfights. They argue that any new exception to the 1st Amendment, no matter how laudable the goal, poses a danger to free expression.

“The road to censorship is paved with good intentions,” said Joan Bertin, executive director of the National Coalition Against Censorship.

But animal rights advocates say no one should be able to profit from the abuse and torture of animals for entertainment.

“This is not about speech, but about a commercial activity of a sickening type,” said Wayne Pacelle, president of the Humane Society of the United States.

The society said it had seen a resurgence of horrific “crush videos” for sale on the Internet in the last year, ever since a U.S. appeals court struck down on free-speech grounds a federal law that banned the selling of videos of animals being maimed and tortured.

These underground videos, said to appeal to a bizarre fetish, typically include tiny animals being crushed by a woman’s shoe.


Investigators for the Humane Society said hundreds of such videos could be purchased online. They showed clips of them to reporters this month.

Laws in all states

All 50 states have laws against animal cruelty, including bans on dogfighting and cockfighting. The 2007 dogfighting case against NFL quarterback Michael Vick prompted a new round of laws, including a California measure that added penalties for attending a dogfight.

Ten years ago, Congress made it a federal crime to market videos or other depictions of live animals being illegally “maimed, mutilated, tortured, wounded or killed.” Its sponsors made clear they did not intend to interfere with legal hunting, fishing or the slaughter of animals for food.

More recently, the law was used against the underground dogfighting industry, which utilizes videos and magazines.

The case coming before the Supreme Court involves Robert Stevens, 69, a Virginia pit bull breeder. Stevens ran a business called Dogs of Velvet and Steel, which provided books and other materials about handling pit bulls.

Among the videos he had for sale was one about using the dogs to hunt wild boar and pigs. Others included scenes of pit bulls fighting each other in Japan, where the activity is legal.

Stevens had advertised several of the videos in “Sporting Dog Journal,” an underground publication that reports on dogfights. After federal agents bought three of his videos, he was indicted in 2004 under the animal cruelty law.

Stevens was the first person to be prosecuted under the law. He was convicted by a jury in Pittsburgh.

The U.S. 3rd Circuit Court of Appeals in Philadelphia decided to strike down the law last year on free-speech grounds. Its judges said that although those who put on dogfights could be punished, the 1st Amendment protected “depictions of animal cruelty.”

The appeals court stated in its decision that the government did not have a “compelling interest” in limiting such depictions.

In the past, the high court has said speech can be restricted when the government has a compelling reason. It is illegal to threaten the president’s life or to solicit a bribe or a contract murder. The court has also said obscenity and child pornography are not protected by the 1st Amendment.

But in striking down the law against animal cruelty videos, the appeals court said the government’s compelling interests had been “related to the well-being of human beings, not animals. . . . It is difficult to see how [a law banning depictions of animal abuse] serves a compelling interest,” wrote Judge D. Brooks Smith.

Free-speech advocates agree, saying that the Supreme Court should look away from the ugliness of the animal torture videos and uphold the principle behind the 1st Amendment.

“The 1st Amendment is most necessary when unpopular speech is at issue,” said David Horowitz, executive director of the Media Coalition.

Some media lawyers worry the law could be used against movies, TV shows or books that show bullfighting or hunting with bows and arrows, or documentaries exposing conditions in a slaughterhouse.

The value of speech

Government lawyers counter that the law has been used rarely, and that it exempts from prosecution any image that has “serious religious, political, scientific, journalistic, historical or artistic value.”

More recently, government lawyers set off alarms with their legal brief saying the court should uphold the law by “balancing the value of the speech against its societal costs.”

“It would be a dangerous departure if the court endorsed that idea. It would open the door to legislation restricting many kinds of ‘low value’ speech simply because some people find it offensive,” said Chris Finan, president of the American Booksellers Foundation for Free Expression.

Bertin said the 1st Amendment has stood as a shield for free expression, not just a legal rule that calls for a balancing of interests in each case.

“Think about flag burning or video games or rap music. Would you want a jury to decide the value of this speech balanced against its perceived social cost?” she asked.

But Joyce Tischler, a co-founder of the Animal Legal Defense Fund in Northern California, said she was disappointed that free-speech advocates like the American Civil Liberties Union had urged the justices to strike down the law.

“The ‘crush videos’ involve torture. There is no other way to say it. It is intentional abuse of a defenseless animal. . . . People who do that should not be able to hide behind the 1st Amendment,” she said.