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September 4, 2009

Overview of United States v. Stevens

Defending the Animal Cruelty Depictions Act

The Humane Society of the United States

Overview

This fall, for the first time in more than 15 years, the U.S. Supreme Court will hear arguments in a major case involving animal cruelty. The case concerns infamous dogfighting videographer Robert Stevens, who was convicted by a Pennsylvania jury of violating a 1999 federal law banning the commercial sale of videos depicting extreme and illegal acts of animal cruelty. At issue is whether the law violates the First Amendment.

Procedural Background

  • In 2005, Robert Stevens was convicted by a jury of knowingly selling graphic 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, the federal Depiction of Animal Cruelty Law. Stevens had been selling graphic videos depicting actual dog fights, which are illegal in all fifty states. Stevens was sentenced to 37 months of imprisonment.

  • Stevens appealed his conviction to the Third Circuit. On July 18, 2008, the Third Circuit overturned the conviction and found that 18 U.S.C. § 48 violated the First Amendment. 533 F.3d 218.

  • In December 2008, the U.S. Solicitor General filed a petition for certiorari requesting that the Supreme Court review and overturn the Third Circuit's decision. The HSUS filed an amicus brief in support of the Solicitor General's petition. On April 20, 2009, the Supreme Court agreed to review the decision. Merits briefs have been filed by both parties, as well as by a number of amici in support of both sides of the case. The case will be heard on October 6, 2009.

    18 U.S.C. § 48, The Depiction of Animal Cruelty Law

  • Section 48 criminalizes the interstate sale of depictions, such as video, in which "a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place." If the depiction has "serious religious, political, scientific, educational, journalistic, historical, or artistic value," it is exempted from the prohibition.

  • Section 48, which passed in 1999 with overwhelming bi-partisan support, is a vital tool for law enforcement to combat extreme acts of animal cruelty, such as the filming of "crush videos" which depict women impaling or crushing small animals (including mice and kittens), often with high-heeled shoes, or sometimes with their bare feet. The law fills a gap in state and federal law enforcement efforts by targeting the commercial production and distribution of depictions of animal cruelty in order to remove the profit incentive for producing such depictions, and deter the underlying acts. These acts of cruelty were otherwise going unpunished and undeterred due to their underground nature.

  • Crush videos and dogfighting videos comprise the majority of material criminalized by Section 48. However, depictions of such cruelty that is publicized by the media or others in an effort to contribute to public debate on the issues would not be criminalized by the statute, as such material would be covered by the exemption.

    Legal Issues

  • The issue to be decided by the Supreme Court is whether the Third Circuit was correct that Section 48 is facially invalid because it prohibits speech protected by the First Amendment. 

  • The Third Circuit found that, unlike certain other categories like child pornography, (a) depictions of animal cruelty are not categorically excluded from the First Amendment protections, and (b) the government's interest in preventing cruelty to animals is not "compelling," and therefore does not justify placing limitations on depictions of cruelty.

    Arguments

  • The Solicitor General has argued that (a) the depictions prohibited by Section 48—such as crush videos and videos of animal fighting—are so devoid of any expressive content or social utility, and so harmful to society, that they lack First Amendment protection altogether, in the same way that child pornography lacks such protections as a category. The U.S. has also argued that, (b) even if such depictions are not categorically excluded from First Amendment protection, Section 48 is nevertheless constitutional because the government's interest in preventing cruelty to animals is compelling—indeed the states have had laws on their books to prevent animal cruelty dating back to the Colonial era—and any minor expressive content contained in depictions of such cruelty is outweighed by the government's interest.

  • The HSUS emphasized in its brief that the government's interest in preventing extreme acts of animal cruelty is absolutely "compelling," and that criminal statutes designed to ensure the humane treatment of animals and to preserve public morals are older than our Nation and reflect its deepest values. The HSUS also argued that depictions of animal cruelty should be treated as "obscenity," and should receive a lower form of judicial scrutiny in the same way that sexual obscenity does. Finally, The HSUS argued that at the very least, if the Court were to find Stevens' conviction invalid, then the remedy would be to overturn his conviction, but not to invalidate the entire statute.

    Enforcement Since Enactment

  • The Depictions of Animal Cruelty Law has been narrowly but effectively used in the decade since enactment. There have been a number of cases advanced to prosecute sellers of dogfighting videos. While there have been no prosecutions for the sale of animal crush videos, the law virtually wiped out the industry. Since the 3rd Circuit nullified the law, however, the animal crush video industry has been revived, and these videos are being sold across the nation on the Internet. There have been no attempted prosecutions for hunting or other legal forms of animal use. 

    Amicus Briefs Filed

  • In support of the United States: The Humane Society of the United States; Washington Legal Foundation and Allied Educational Foundation; Center on the Administration of Criminal Law; American Society for the Prevention of Cruelty to Animals; Animal Legal Defense Fund; The International Society for Animal Rights; Northwest Animal Rights Network; Attorneys General of Florida, Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Montana, New Hampshire, New Mexico, North Carolina, Ohio, Rhode Island, South Carolina, Texas, Utah, Virginia, and West Virginia; American Law Professors.

  • In support of Stevens: The Cato Institute; The DKT Liberty Project, The ACLU, Center for Democracy and Technology; Thomas Jefferson Center; National Coalition Against Censorship; Professional Outdoor Media Ass’n, American Soc’y of Media Photographers, North American Nature Photography Ass’n, Pennsylvania Outdoor Writers Ass’n, Southeastern Outdoor Press Ass’n, Texas Outdoor Writers Ass’n; First Amendment Lawyers’ Association; National Rifle Association; Safari Club, International and Congressional Sportsmen’s Foundation; Constitutional  Law Scholars; National Shooting Sports Foundation; Reporters Committee for Freedom of the Press; Association of American Publishers et al. 
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