U.S. v. Stevens

  • September 16, 2010
    Lawmakers are again considering legislation aimed at outlawing videos that depict animal cruelty. In the spring, the Supreme Court ruling in U.S. v. Stevens, invalidated as a violation of the First Amendment a 1999 federal law that banned creation and disturbution of videos of animal cruelty.

    The Blog of Legal Times (BLT) reports on a hearing this week before the Senate Judiciary Committee focused on creating a new law that supposedly would not be as sweeping as the first one. The new legislation is supposedly aimed primarily at crush videos, which show animals being crushed to death by "scantily clad, high-heeled women," as described before the committee by the Humane Society of the United States' (HSUS) vice president for government affairs Nancy Perry.

    The BLT, notes that "ACLU lobbyist Michael Macleod-Ball," testified against the bill warning that although animal cruelty is illegal, but that banning such acts would still violated free speech.

    In post for the HSUS blog, the group's leader Wayne Pacelle writes that the matter of trying again to ban crush videos has "united members of Congress across the spectrum," noting that the House of Representatives has already passed a bill "to ban interstate and foreign commerce in these abhorrent videos."

  • April 20, 2010
    The U.S. Supreme Court today voted 8-1 to invalidate a federal law that outlawed commercial depictions of animal cruelty. The majority opinion in U.S. v. Stevens concluded that the 1999 law, aimed at curtailing the distribution of videos and other material showing cruelty to animals, was overly broad and therefore a violation of the First Amendment. When Congress passed the law it was intended to curb the distribution of "crush videos," which show women crushing animals to death. The ruling upheld a decision by the U.S. Court of Appeals for the Third Circuit, which overturned a Virginia man's conviction under the law. Robert Stevens was convicted of violating the law for selling videos showing dog fights and other animal cruelty.

    Writing for the majority, Chief Justice John Roberts cited precedent dating back to 1791 that allows for very few government restrictions on the "content of speech." The federal government in defending the law argued that limiting depictions of animal cruelty should be added to the list of speech not protected by the First Amendment.

    "It contends," Roberts wrote, "that depictions of ‘illegal acts of animal cruelty' that are ‘made, sold, or possessed for commercial gain' necessarily ‘lack expressive value,' and may accordingly ‘be regulated as unprotected speech.'" Roberts disagreed, writing, "The claim is not just that Congress may regulate depictions of animal cruelty subject to the First Amendment, but that these depictions are outside the reach of that Amendment altogether - that they fall into a ‘First Amendment Free Zone.'"

    In analysis for SCOTUSblog, Lyle Denniston noted that the majority decision did stress "that it was not restricting the power of the government to punish actual acts of animal cruelty, and it noted that such prohibitions have ‘a long history in American law.'" 

    Justice Samuel Alito was the only judge to dissent, writing that the majority's opinion, which "has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted." Alito also said the majority opinion erred in deciding that the federal government's law was overly broad.

    Before the case was argued, The Humane Society's Wayne Pacelle provided his thoughts on its implications for ACSblog. His guest post is here

    Today Pacelle wrote, "With the Court issuing a disappointing albeit carefully crafted decision, it seems that Congress can step in and write a more narrowly tailored federal statute to prohibit the commercial sale of videos depicting extreme and illegal acts of cruelty. Clearly, it should not be legal to stage a dogfight in your basement and then sell the video of this criminal action."

  • October 15, 2009
    Guest Post

    By Naomi Werne, retired New York City prosecutor and criminal defense attorney for 30 years

    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.

  • October 7, 2009
    Guest Post

    By Brian Maloney. Maloney is a 2009 graduate of Boston University School of Law and a member of the 2009 class of ACS Next Generation Leaders. Maloney is a fellow at a civil rights litigation non-profit in Washington, D.C. and is awaiting admission to the Maryland bar.

    During its second full day of the new term, the Supreme Court heard arguments in United States v. Stevens. Jennifer Liebman first wrote about the case in May on the ACS Blog and I provided an update on October 5.

    Stevens involves 18 U.S.C. § 48, which makes it a federal crime to possess or sell depictions of animal cruelty where the conduct depicted is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place. Mr. Stevens was convicted under the law for selling three videos of dog fights. His conviction was overturned when the Third Circuit found the law unconstitutional.

    In the ACS Supreme Court Preview, Paul M. Smith, a Supreme Court litigator and member of the ACS Board of Directors, discussed the case and the reasons why the Court would grant certiorari (beginning approximately 14 minutes and 30 seconds into the video). His opinion was that the Supreme Court may have granted certiorari here principally because a federal court struck down a federal law and the government sought review. He noted that the lack of a circuit split regarding the constitutionality of the law does not necessarily indicate that the Court took the case to overturn the Third Circuit's decision. Judging from the argument, he may have been correct.

    Neal Katyal, the Principal Deputy Solicitor General of the United States, had just begun his argument when he was interrupted with a question from Justice Sonia Sotomayor, who continued her pattern of active questioning from the first day's arguments. In fact, Justice Sotomayor and the other justices vigorously questioned Mr. Ketyal throughout his argument and several justices signaled their skepticism of the government's argument in favor of the law's constitutionality.

  • October 6, 2009

    By Wayne Pacelle, president and CEO of The Humane Society of the United States (HSUS). Pacelle also blogs at A Humane Nation, where the article is cross-posted.

    Today the United States Solicitor General Elena Kagan will stand before the Supreme Court and argue that the federal Depiction of Animal Cruelty Law is not only constitutional but urgently needed to stop the abuse of animals. Congress passed the law by overwhelming margins in 1999 to halt the interstate sale of videos depicting illegal acts of animal cruelty, including so-called "animal crush" videos, where women in stiletto heels crush, impale, and even burn small animals in order to titillate viewers.

    The law caused the crush video industry to recede dramatically and no prosecutions of purveyors of crush videos have been needed in the decade that the law was in force. The law has never been used against documentary filmmakers, journalists or others engaging in legitimate speech -- the only three prosecutions under the law have involved dogfighters who sold videos in interstate commerce for profit. Dogfighting is a federal felony and a felony in every state -- making it the most widely and severely criminalized form of animal cruelty in the United States.

    The case before the court is U.S. v. Stevens, and it comes to the court after the U.S. Court of Appeals for the Third Circuit threw out the conviction of dogfighting impresario Robert Stevens that was handed down by a federal jury in Pennsylvania. Stevens peddled several videos -- "Japan Pit Fights," "Pick a Winna," and "Catch Dogs and Country Living" -- all of which showed grossly inhumane treatment of animals, including some staged in Japan. Stevens apparently shipped three dogs to Japan for the fights shown in one video. Some of the fights last for more than an hour, and the dogs are bloodied and suffering throughout.

    The federal law has an exemption for materials with "serious religious, political, scientific, educational, journalistic, historical, or artistic value." After viewing the videos and hearing days of arguments on both sides, the jury found that Stevens' videos had no such qualities and was an unvarnished dogfighting promotional video, showing acts of cruelty illegal in the United States.

    In the press, Stevens and his lawyer have claimed that he is a documentarian and that he opposes dogfighting! Yet we know at The HSUS that the man has been deeply involved in promoting dogfighting for decades, and this eleventh-hour courtroom performance is nothing short of an unadulterated lie. Few drug dealers or arsonists admit they are criminals, and that's been our experience with dogfighters too. And I can't recall ever hearing a documentary narrator egging on the subjects to tear each other limb from limb, as Stevens does several times during a 90-minute dogfight in "Pick a Winna."

    Before raking in more than $50,000 in three years from the commercial sale of illicit dogfighting videos advertised in underground dogfighting magazines, Stevens wrote a book called "Dogs of Velvet and Steel," which is a dogfighting manifesto and training manual. He's been a major figure within the criminal underworld of dogfighting for decades, and justice was done in convicting him and sentencing him to a term in federal prison.