Supreme Court to hear appeal of man jailed for dogfight videos

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Are graphic depictions of dogfighting similar to child pornography, or are they no different from images routinely published in hunting and fishing magazines?

This week, the U.S. Supreme Court will take on a Western Pennsylvania case that pits animal cruelty opponents against First Amendment advocates.

Robert J. Stevens, who lives in rural, southern Virginia, was convicted in Pittsburgh in January 2005 of three counts of selling depictions of animal cruelty.

The videos featured scenes of legal dogfighting in Japan, as well as old American footage that he claimed was produced before dogfighting was outlawed.

Mr. Stevens was sentenced to 37 months in prison.

Animal cruelty vs. free speech

However, the 3rd U.S. Circuit Court of Appeals, in an en banc decision, overturned his conviction, finding that the 1999 law was unconstitutional because it created an impermissible infringement on free speech.

The United States appealed, and the Supreme Court will hear oral arguments Tuesday.

It is the first local case taken by the court since 2006.

The law upon which Mr. Stevens was convicted was originally passed to combat so-called "crush" videos, in which women typically wearing high-heeled shoes crush to death small mammals for the sexual gratification of those watching.

The law criminalizes "the visual or auditory depiction ... in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed," provided that the conduct depicted is illegal either under federal law or in the state where it is created, sold or possessed.

It specifically exempts images that have "serious religious, political, scientific, educational, journalistic, historical or artistic value."

Boost to morality

In its brief to the court, the government contends that animals are innocent, vulnerable creatures that must be protected.

Further, attorneys for the solicitor general's office wrote that in the United States, there have long been laws that sought to protect animals as a way of strengthening public morality.

"Illegal acts of animal cruelty result in great suffering to defenseless animals, as well as injuries to human beings and the erosion of important public mores," the government wrote.

Enforcing such laws, it continued, is a compelling state interest, along the same lines as criminalizing sexually explicit images of children.

"Like child pornography, the material here depicts the horrific maltreatment of helpless victims, which society long has deemed reprehensible," the solicitor general wrote.

Wayne Pacelle, the president and CEO of the Humane Society of the United States, which filed a friend-of-the-court brief on behalf of the government, agreed with that parallel.

"I don't think we have to make them equal, but we have to establish that the government has a compelling interest to protect both," Mr. Pacelle said.

But the defense contends that society cannot equate animals with children.

"I'm an animal lover," said David Horowitz, the executive director of the Media Coalition, which filed a brief on Mr. Stevens' behalf. "But the bottom line is we don't treat animals the same way we treat people. The idea that it's analogous to the way children are treated is not appropriate."

A broad reach

Mr. Horowitz, who helped organize a number of groups in support of Mr. Stevens in the case, believes that if the law is allowed to stand that it could have wide-ranging First Amendment implications.

"This law affects a lot more materials than discussed," he said.

It could impact hunting magazines and television shows, as well as traditional materials on bullfighting.

While hunting is legal in all 50 states, it is not in Washington, D.C. Though an extreme example, Mr. Horowitz said it's possible that a prosecutor in that jurisdiction could go after a hunting video being sold there, though it was made elsewhere.

"The images of that conduct become illegal simply by being transported into that jurisdiction," he said. "That becomes a very dangerous proposition.

"We believe they'd be better off prosecuting the conduct and not the speech."

But Mr. Pacelle argues that -- especially with regard to the crush videos -- they are made in an underground setting where it is difficult ever to find out who is abusing the animals.

He also noted that with the passage of the law, the sale of crush videos online has significantly decreased.

"The law works best not when you arrest people but when it causes them to correct their behavior," he said.

Mr. Stevens notes in his brief to the Supreme Court that if Congress truly sought to stop the production of crush videos, it could have used already existing obscenity laws to prosecute.

Instead, in the 10 years since the law was passed under which he was convicted, it has never been used to prosecute someone for a crush video. It has been used just three times in the entire country -- always for animal fighting, Mr. Pacelle said.

While the government and groups like Mr. Pacelle's argue that no one should profit from the sale of images of animal abuse, Mr. Stevens said advocacy groups do just that.

Animal rights organizations often use dogfighting videos, or images of abused animals, to raise public awareness of a problem.

Those groups aren't punished, his lawyers said, because the government agrees with their viewpoint, and that is content discrimination.

"Nothing in the exception explains why [his videos] send Mr. Stevens to jail while similar images on the Discovery Channel and bloodier images on scores of other hunting videos are permitted," they wrote.

Further, they continued, like those advocacy groups, Mr. Stevens is also opposed to dogfighting.

He argued that his videos were made to educate the public about the strengths and characteristics of pit bulls and to show how they have evolved in society. He called his business Dogs of Velvet and Steel.

In the government's brief, lawyers noted that in 2007 and 2008, Congress twice strengthened the criminal sentences for those convicted of animal fighting.

"These laws reflect a society consensus that animals should be treated with at least a minimal level of decency," they wrote.

Two standards?

But Mr. Stevens' attorneys wrote that animals in the United States are routinely killed for meat, fur and skin. They noted that silk worms are boiled alive to make silk; cosmetics are regularly tested on animals; people boil lobsters and crab alive as a delicacy, and millions of Americans hunt.

"In the nuanced balance that our nation strikes between animal protection and human desires, the Free Speech Clause must be given at least the same weight in the balance as vanity, gastronomical pleasure and entertainment."

Mr. Pacelle, from the Humane Society, believes the law in question has nothing to do with the First Amendment and everything to do with protecting animals that cannot speak for themselves.

"I can't imagine a society that can't balance robust, free expression with a need to criminalize that utterly outrageous conduct that has no socially redeeming value," Mr. Pacelle said.

But Mr. Stevens' attorneys put his films in the same category as those of animal rights' groups, Hollywood producers and documentary makers who escape scrutiny.

"[T]he First Amendment matters most when we most vehemently disagree," they wrote. "While failure to hew to orthodoxy in viewpoint and message is enough to send individuals to prison in other countries, it should not be enough in the United States."


Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.


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