The 3^rd Circuit Court of Appeals, a federal appeals court, has found 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 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 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.

WHAT  YOU CAN DO

You can call on the 3rd  Circuit Court of Appeals to reconsider this opinion. Call or write and politely ask the court to uphold 18 U.S.C. Sec. 48, a ban on the making and sale of photos, videos depicting animal cruelty. Please reference the case name and number: USA v. Stevens, No. 05-2497.

Main number for 3rd Circuit: 215-597-2995

Office of the Clerk
United States Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106-1790.

http://www.ca3.uscourts.gov/judgelist/coa-jdgs.pdf

The judges can receive letters at the address above.