October 2009

The oral arguments in U.S. v. Stevens as recently reported in The New York Times and the issues posed by the Justices of the U.S. Supreme Court were surprisingly off focus. That Justice Ruth Bader Ginsburg drew the distinction that "the abuse of the dog and the promotion of the fight is separate from the filming of it" is, with all due respect, drawing a distinction without a difference. The law in question, 18 USC 48, concerns the infliction and depiction of intentional animal cruelty for commercial gain. This law came into being because of the proliferation of dog fighting films, and "crush" fetish films which depicted women in high heels intentionally crushing and killing small animals. This is no less prurient or obscene than child pornography - it has no redeeming social value. As Justice Ginsburg said, "the very taking of the picture is the offense - that's the abuse of the child." So it is with the intentional mutilation of animals in order to film it. This has no more redeeming social value than did the obscene "snuff" films of several decades ago.

In an early obscenity case, Paris Adult Theatre I v Slaton, 414 U.S. 49, 67 N.15 (1973), the Court noted that a primary motivation for banning cruel "sports" involving animal cruelty such as bear baiting and cock fighting was that they debased the spectators. Notably, the link between animal cruelty and violence against humans has long been recognized by both law enforcement officials and mental health professionals. See, "School Violence: Lessons Learned," Harpold M.S. & Band, Ph.D., FBI Bulletin, September, 1999, p. 9 (noting that among the 5 factors indicating a juvenile at risk for violence is acts of animal cruelty); "Another Weapon for Combating Family Violence: Preventing Animal Abuse," Lacroix, Charlotte, A., DVM, JD., 4 Animal L. Rev. 1 (1998).

Dog fighting is illegal in all fifty states. Bear baiting and cock fighting are illegal in most jurisdictions. The Animal Fighting Prohibition Enforcement Act (7 USC 2156) bans most animal fighting ventures, including raising and transporting animals for those illegal ventures. Increased penalties for spectators (under such state laws as New York's Agriculture & Markets Law, Sec 351(4)(b)) coupled with the Internet have fueled the demand for animal fighting videos. This demand, like the demand for child pornography, encourages an industry that further victimizes those who are among society's most vulnerable and who cannot speak for themselves. These animals are literally the underdogs.

In his show last night, Stephen Colbert examined the issue of chruch-state separation. He focused on the exchange between attorney Peter Eliasburg and Justice Antonin Scalia during last week's oral argument in Salazar v. Buono, involving a religious symbol on public land. For a more serious analysis of the case, see an ACS guest blog here.