U.S. v. Stevens Recap: a Distinction Without a Difference -- Violence Against Animals is Obscenity, Not a First Amendment Right

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.

Consequently, it is indefensible to argue, as a San Francisco columnist did, that it is a denial of equal protection or content based chilling of free speech to permit a documentary condemning dog fighting but not Stevens' video exalting it. This columnist metaphorically wrung his hands, condemning Stevens' videos, but arguing that in a free society we permit speech with which we disagree. Filming an illegal act does not remove its illegality and transmogrify it into pure expression. Then "snuff" films would be pure expression and we could show them on prime time.

Moreover, the film does not meet any of the exceptions articulated under the Miller test and included in 18 USC 48 (i.e., "serious literary, artistic, political or scientific value") (Miller v. California, 413 U.S. 15, 24 (1973)). If Stevens had instead written a book exalting dog fighting, it would most likely be protected under the First Amendment. As in child pornography, absent photographic illustrations of an actual twelve year old girl having relations with an adult male, Nabokov's Lolita was not obscene under the Miller test. It consisted only of written words -- no actual child was harmed in its production. So too, no bull is taunted or tortured in the hot sun or bleeds slowly to death between the pages of Blood and Sand or any of Hemingway's other books. In any event, what Justice Antonin Scalia finds to be an "enobling" sport may soon be outlawed in parts of Spain.

But Justice Scalia misses the point. What is truly enobling are the countless heroic feats that animals perform for their guardians - the police dog who shields a police officer from a bullet; the countless search and rescue dogs, including from 9/11, who tirelessly search to save men, women and children; the pitbull who dashes in front of a venomous cobra and gives up his life to save a family; the dog who saves a child from a burning building, or who saves the life of an epileptic before their seizure; or the cat that recently took heavy abuse for defending a little girl from sexual abuse (with the cat's wounds introduced as corroborating evidence).

Given the bent of the justices' comments, it would appear almost impossible to pass a law that could meet the justices' objections. A film depicting an animal's mutilation in violation of established anti-cruelty laws would be expression. This trivialization may make it more difficult to prosecute animal cruelty cases if the only physical evidence that remains is a film depicting it. Not so in a homicide case. If the film is a reliable record of the murder, such as a "snuff" film, the film would be adequate to convict. On the other hand, an animal's body can be easily discarded. In the absence of a paw or a bloody trail, there is no corpus dilecti and this loophole will fuel the demand for such films.

It is clear from the district court's decision that the dogs in Stevens' film were intentionally tortured for the intended purpose of depicting that torture on film for commercial gain. Contrary to Millett's arguments defending Stevens, Congress did write the law with a scalpel and could not be more plain. But separating the intentional mutilation from its intended pecuniary purpose is a distinction without a difference. Invalidating the law would serve only to embolden perpetrators to do an end run around existing anti-cruelty laws in the name of free expression. We should heed the debasement that occurs with any intentional mutilation of an animal, lest the law's invalidation makes us all unwitting spectators.