Supreme Court Listens to NRA in Striking Ban on Crush Videos

Update April 20, 2010: In an 8-1 opinion with only Justice Samuel J. Alito dissenting, the U.S. Supreme Court struck down the federal law prohibiting the creation, sale or possession of animal crush videos and other depictions of animal cruelty for commercial gain. 18 U.S.C. §48.

The films, photos and other depictions that are banned under this law show a living animal that is "intentionally maimed, mutilated, tortured, wounded, or killed".  The law does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. The law only applies to depictions of illegal conduct.

In throwing out the law, the justices overturned the conviction of Robert Stevens who sold dog fighting videos. (Read more about his conviction in Animal Law Coalition’s earlier report below.)  

In an opinion authored by Chief Justice John Roberts, the Court rejected the idea that depictions of animal cruelty should be regarded as unprotected speech, much like obscenity, child pornography or words that incite violence or are integral to criminal activities.  

The Majority Sides with the NRA 

Instead, the Court found the law is unconstitutionally overbroad, an infringement of the First Amendment.  The Court worried, for example, that depiction of the "humane slaughter" of a stolen cow or hunting magazines with photos of animals killed during hunts would now be illegal.

Citing the  National Rifle Association, the Court noted "hunting magazines alone account for $135 million in annual retail sales".  Citing the Safari Club International and the Congressional Sportsmen’s Foundation, the Court said "many popular [hunting] videos ‘have primarily entertainment value’ and are designed to ‘entertai[n] the viewer, marke[t] hunting equipment, or increas[e] the hunting community.’"  Again citing the National Rifle Association, the Court added "much of the content of hunting media . . . is merely recreational in nature." Certainly not to the animals being trapped, chased and shot or skinned.

The Court also pointed out that animal cruelty is for the most part based on state laws.  State laws regarding animal cruelty, hunting, treatment of livestock and wildlife vary such that it would be very difficult to know what depictions would be illegal from state to state. The Court noted there is no good way to tell what has "serious" value as news, for example, and which depictions are simply animal cruelty depicted for commercial gain. A bull fight in Spain covered by an internet blogger v. a dog fight depicted in a video sold over the internet.

Justice Alito’s dissent

Justice Alito disagreed, however. Justice Alito said, " The Court strikes down in its entirety a valuable statute, 18 U. S. C. §48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty-in particular, the creation and commercial exploitation of ‘crush videos,’ a form of depraved entertainment that has no social value. The Court’s approach, 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."  

Justice Alito rejected that the First Amendment protects violent, criminal conduct.  

Justice Alito pointed out the statute does not apply to depictions of hunting either because it is legal in all 50 states or it falls within the exemption. The same is true of "humane slaughter". Regardless,said, Justice Alito, the law is not "substantially overbroad".    

Justice Alito offered a reminder of the purpose of this law, describing a crush video submitted to the Court as evidence: "[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone."

The justice stated, "It is undisputed that the conduct depicted in crush videos may constitutionally be prohibited. All 50 States and the District of Columbia have enacted statutes prohibiting animal cruelty. …But before the enactment of §48, the underlying conduct depicted in crush videos was nearly impossible to prosecute. These videos, which ‘often appeal to persons with a very specific sexual fetish,’ …were made in secret, generally without a live audience, and ‘the faces of the women inflicting the torture in the material often were not shown, nor could the location of the place where the cruelty was being inflicted or the date of the activity be ascertained from the depiction.’…. Thus, law enforcement authorities often were not able to identify the parties responsible for the torture. …In the rare instances in which it was possible to identify and find the perpetrators, they ‘often were able to successfully assert as a defense that the State could not prove its jurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in the state statute of limitations.’

"In light of the practical problems thwarting the prosecution of the creators of crush videos under state animal cruelty laws, Congress concluded that the only effective way of stopping the underlying criminal conduct was to prohibit the commercial exploitation of the videos of that conduct. And Congress’ strategy appears to have been vindicated.

"We are told that ‘[b]y 2007, sponsors of §48 declared the crush video industry dead. Even overseas Websites shut down in the wake of §48. Now, after the Third Circuit’s decision [facially invalidating the statute], crush videos are already back online.’

"The only way of preventing these crimes was to target the sale of the videos. Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue."

Justice Alito concluded, "The animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country."

For more on this case including a look at the opinions of the lower courts, read Animal Law Coalition’s reports below.

Update October 6, 2009: The U.S. Supreme Court heard oral argument today in this case that challenges the statute, 18 U.S.C. Section 48, a law that criminalizes depictions of animal cruelty. You can read a transcript of the argument here. The case number is 08-769. 

Petition to the U.S. Supreme Court                                              

The petition to the Supreme Court was a result of the opinion by the 3^rd Circuit Court of Appeals, a federal appeals court, that the statute, 18 U.S.C. §48 violates the First Amendment guarantee of the right to free speech.

This federal statute, passed in 1999, makes it a crime for anyone who "knowingly creates, sells, or possesses a depiction of animal cruelty" for interstate or foreign trade.

With this law Congress created a new category of unprotected speech. The 3^rd Circuit Court of Appeals decided not to allow Congress to regulate this category of speech, in part, because there was no compelling government interest at stake.  

The Majority Opinion

The 3rd Circuit Court in a majority opinion authored by Justice D. Brooks Smith said, "No matter how appealing the cause of animal protection is to our sensibilities, we hesitate-in the First Amendment context-to elevate it to the status of a compelling interest. Three reasons give us pause to conclude that ‘preventing cruelty to animals’ rises to a compelling government interest that trumps an individual’s free speech rights.

"First, the Supreme Court has suggested that the kind of government interest at issue in §48 is not compelling…. Therefore, it seems that, on balance, animal rights do not supersede fundamental human rights. Here, while Government can and does protect animals from acts of cruelty, to make possession of films of such acts illegal would infringe upon the free speech rights of those possessing the films….

"Second, while the Supreme Court …rarely finds such an interest for content-based restrictions. When it has done so, the interest has-without exception-related to the well-being of human beings, not animals…. Nothing in these cases suggests that a statute that restricts an individual’s free speech rights in favor of protecting an animal is compelling…Third, there is not a sufficient link between § 48 and the interest in ‘preventing cruelty to animals.’"

The majority of the 3rd Circuit Court in this 10-3 opinion also said, "[C]hild pornography should be banned, in part, because the pornographic material continues to harm the children involved even after the abuse has taken place. While animals are sentient creatures worthy of human kindness and human care, one cannot seriously contend that the animals themselves suffer continuing harm by having their images out in the marketplace".

Justice Smith said children are harmed "knowing that their images are available or by seeing the images themselves…[A]nimals are not capable of such awareness. Put differently, when an animal suffers an act of cruelty that is captured on film (or by some other medium of depiction or communication), the fact that the act of cruelty was captured on film in no way exacerbates or prolongs the harm suffered by that animal."

The majority found insufficient evidence to believe that shutting down this market for depictions of animal fighting and other cruelty would help stop these illegal acts.  

The majority then decided the statute also did not survive a heightened scrutiny and was unconstitutionally overbroad.

As an example, the Court pointed out, "If a person hunts or fishes out of season, films the activity, and sells it to an out-of-state party, it appears that the statute has been violated. Similarly, the same person could be prosecuted for selling a film which contains a depiction of a bullfight in Spain if bullfighting is illegal in the state in which this person sells the film."

The majority did say its primary concern was how the government described its interest in the statute: "[W]e have suggested that the compelling government interest should be redefined as "preventing cruelty to animals that state and federal statutes directly regulating animal cruelty under-enforce." And once this reformulation of the interest targeted by § 48 is accepted, we do not see how a sound argument can be made that the Free Speech Clause is outweighed by a statute whose primary purpose is to aid in the enforcement of an already comprehensive state and federal anti-animal-cruelty regime. 

"Conversely, if we agree with the Government that the compelling government interest is "preventing cruelty to animals," then we do not see how a sound argument can be made that § 48 is narrowly tailored and uses the least restrictive  means…

Did the majority really decide to strike down this law simply because the justices didn’t like the way the government’s attorneys described the interest in stopping the trade in videos, books, magazines and other paraphernalia depicting animal fighting and cruelty?

The majority went on,"[I]f we accept that the government interest served by § 48 is to prevent animal cruelty, the statute is-by its very terms-underinclusive….[and] overinclusive. In short, the research and empirical evidence in the record before us simply does not support the notion that banning depictions of animal cruelty is a necessary or even particularly effective means of prosecuting the underlying acts of animal cruelty. Much less is it the ‘most expeditious’ or the ‘only practical method’ of prosecuting such acts, as is the case within the realm of child pornography and child sexual abuse. For these reasons, § 48 is not narrowly tailored using the least restrictive means."

The Dissent

The dissent disagreed, stating, "Our nation’s aversion to animal cruelty is deep-seated. Laws prohibiting cruelty to animals have existed in this country since 1641, when the Puritans of the Massachusetts Bay Colony enacted a law entitled ‘Off the Bruite Creature,’ which stated: ‘No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man’s use.’…[T]he Government has a compelling interest in eradicating animal cruelty, depictions of animal cruelty are intrinsically related to the underlying animal cruelty, the market for videos of animal cruelty incentivizes the commission of acts of animal cruelty, and such depictions are of de minimis value…In reaching this decision…, we emphasize that we have before us…[a law] prohibiting depictions of a narrow subclass of depraved acts committed against an uniquely vulnerable and helpless class of victims."

Facts of the Case

This was the first case involving a challenge to §48. Robert Stevens, a Virginia resident, was convicted of knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48.

As the Court explained, "The indictment arose out of an investigation by federal and Pennsylvania law enforcement agents who had discovered that Stevens had been advertising pit bull related videos and merchandise through his business.

"Stevens advertised these videos in Sporting Dog Journal, an underground publication featuring articles on illegal dogfighting. Law enforcement officers arranged to buy three videotapes from Stevens, which form the basis for each of the counts in the indictment. The first two tapes, entitled "Pick-A-Winna" and "Japan Pit Fights," show circa 1960s and 70s footage of organized dog fights that occurred in the United States and involved pit bulls, as well as footage of more recent dog fights, also involving pit bulls, from Japan. The third video, entitled "Catch Dogs," shows footage of hunting excursions in which pit bulls were used to "catch" wild boar, as well as footage of pit bulls being trained to perform the function of catching and subduing hogs or boars. This video includes a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig.

"The footage in all three videos is accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature of which Stevens is the author.

"As a result of their investigation, law enforcement officers obtained a search warrant for Stevens’ Virginia residence. One day later, on April 23, 2003, officers executed the search warrant and found several copies of the three videos, as well as other dogfighting merchandise.

"On March 2, 2004, a grand jury in the Western District of Pennsylvania returned an indictment charging Stevens with three counts of knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48.

"On January 13, 2005, the jury returned a verdict of guilty on each of the three counts. The District Court sentenced Stevens to 37 months of imprisonment and three years of supervised release."

Why Congress Passed this Law

The legislative history for §48 indicates Congress sought to stop "crush videos." "A crush video is a depiction of "women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos." H.R. REP. NO. 106-397, at 2 (1999).

Other government interests included "regulating the treatment of animals" and discouraging individuals from becoming desensitized to animal violence because that may serve to deter future antisocial behavior toward human beings". H.R. REP. NO. 106-397, at 3-4.