U.S. v. Stevens is indeed a tricky case. Although Virginia resident Robert Stevens was convicted in 2005 for producing and distributing videos of real dog and hog-dog fights, the very law under which he was convicted was reexamined and overturned on appeal in 2008.
In that judgment, the Third Circuit Court of Appeals decided that the law in question, 18 U.S.C. § 48 (“Section 48,” also known as the Crush Act), was unconstitutional because it carved out a previously unrecognized, and, they felt, unjustified exception to the free speech rights guaranteed in the First Amendment to the U.S. Constitution. Now the case is before the nation’s highest court, with the United States of America one side as the petitioner and Robert Stevens on the other as the respondent. The U.S. Attorney’s office is fighting to restore Section 48, while Stevens is fighting to keep the law nullified and his conviction overturned.
Here is the law in question:
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§ 48. Depiction of animal cruelty
(a) Creation, Sale, or Possession. — Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception. — Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions. — In this section —
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct 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, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.
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No one, not even Stevens, is arguing that the animal fights captured on his videos aren’t illegal acts in the United States. However, federal judges have long made the distinction between illegal conduct and speech about illegal conduct, which is generally protected. Very few kinds of speech are totally beyond the protection of the First Amendment (they are: obscenity, incitement to illegal activity, “fighting words” and child pornography). The Third Circuit Court of Appeals did not feel that the U.S. government had a compelling interest in ranking the protection of animals above an individual’s right to disseminate “speech” depicting genuine acts of animal cruelty.
If the Crush Act had been specifically written to refer only to crush videos, it would very likely be upheld. Crush videos are animal cruelty in its most base and unjustifiable form; plus, similar to child pornography, crush videos depict events that clearly are staged for the express purpose of filming them for commercial sale. The Animal Legal Defense Fund put it well in its amicus curiae (“friend of the court”) brief, saying: “As Congress has found, animal cruelty is often committed so that others can watch.” However, the Crush Act faces permanent repeal largely because, even with its exceptions, jurists find its broad wording ripe for potential prosecutorial abuse. For example, mused Supreme Court justices during the October 2009 hearing, couldn’t the law, as written, also be construed to apply to hunting videos? If such a video, showing the killing of animals, is sold in a state where the particular manner of hunting (or animal being hunted) is illegal, its seller could, in theory, be prosecuted under the Crush Act—even if the hunting depicted was perfectly legal in the state in which it was filmed. (See definition 1, “depiction of animal cruelty.”)
For the time being, we can only wait and see which side will be taken by the Supreme Court—a decision is expected by April 2010.
Update—April 20, 2010: The Supreme Court today upheld the Third Circuit's nullification of the Crush Act by a vote of 8-1, with Justice Alito as the only dissenter.
Read the ASPCA’s amicus curiae brief in support of the position taken by the United States of America in the Stevens case.