By Robert Barnes
Washington Post Staff Writer
Tuesday, April 21, 2009
The Supreme Court yesterday turned to the gruesome, announcing that it will decide next term whether fetish films that depict the killing of small animals and videos of dogfights are protected by constitutional guarantees of free speech.
The justices said they would review, at the request of the federal government, an appeals court decision that said Congress's broad attempt to discourage animal cruelty by outlawing its depiction violates the First Amendment.
The U.S. Court of Appeals for the 3rd Circuit in Philadelphia voted 10 to 3 last summer to find unconstitutional the rarely used law passed by Congress in 1999. The appeals court said the goal of protecting against animal cruelty was a worthy one, but one already accomplished by laws in all 50 states and the District of Columbia outlawing the practice.
The appeals court noted that the Supreme Court is resistant to removing First Amendment protections of depictions even of illegal actions. The last time the court did so was over child pornography.
"Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm," the appeals court said.
The law was passed in order to combat a phenomenon most people have never heard of: "crush videos." According to the House report that accompanied the bill, the videos depict "women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. . . . The cries and squeals of the animals, obviously in great pain, can also be heard in the videos."
The report said the videos appeal to people "with a very specific sexual fetish," and because often only a woman's leg or high-heeled shoe is shown inflicting the torture or death to the puppies, kittens and other animals, prosecution under animal cruelty laws is difficult.
But the broadly written law, which outlaws depictions of almost any form of animal cruelty, apparently has never been used for prosecuting crush videos. Instead, it snared Robert Stevens of Pittsville, Va., who was convicted and sentenced to 37 months in jail for selling videos of pit bull fights to undercover agents operating out of Pennsylvania.
Stevens was not accused of taking part in the filming of the videos, one of which showed a dog ripping apart the jaw of a pig and another that depicted a dogfight filmed years earlier in Japan, where the fight apparently was legal.
Lawyers for Stevens said the government apparently has used the law only three times, all for videos about dogfights. But the lawyers said the exceptions in the law, for "serious religious, political, scientific, educational, journalistic, historical or artistic value," show that the images have some First Amendment value.
"While the government may well have a significant interest in combating acts of animal cruelty, it has not established a compelling interest in prohibiting speech -- visual or aural depictions -- about such conduct," wrote Stevens's attorney Lisa B. Freeland, a federal public defender in Pennsylvania.
But the federal government said the prohibition was similar to others upheld by the court. "Like other forms of unprotected speech, such as child pornography, depictions of the intentional infliction of suffering on vulnerable creatures play no essential role in the expression of ideas," said the brief from the solicitor general.
The Humane Society of the United States also had urged the court to review the law, saying that the sale of crush videos on the Internet had "all but disappeared" after the law was passed but that sales had been revived by the decision that the law was unconstitutional.
"We wouldn't allow the sale of videos of actual child abuse or murder staged for the express purpose of selling videos of such criminal acts, and the same legal principles apply to despicable acts of animal cruelty," the society's president, Wayne Pacelle, said in a statement.