The United States Supreme Court argued one of this season’s primary cases on Tuesday, concerning whether Congress can constitutionally outlaw videos showing dogs fighting or other small animals being tortured and killed. The case, which hinges on depictions of animal cruelty, raises questions about the limits of First Amendment protection for documentary filmmakers and the media.
The discussion dates back to the 1999 Depiction of Animal Cruelty Law, which prohibited such depictions as part of an effort to stop the proliferation of “crush films,” a kind of niche pornography in which women wearing spiked heeled-shoes are shown crushing small animals to death.
The 1999 statute marks only the second time the Court has ruled on a topic not protected by the First Amendment. The first ruling was on child pornography in 1982.
In 2004, Robert Stevens was charged with violating interstate commerce laws by selling depictions of animal cruelty. In his popular video, “Catch Dogs and Country Living,” Stevens included found footage of dog fights from Japan where the activity is legal. His was the first case in the U.S. to proceed to trial under the 1999 law, and in 2005, he was sentenced to 37 months in prison, 14 more months than professional football player Michael Vick received. Stevens has yet to serve any part of that sentence since appealing his case.
Patricia Millett, the lawyer for Robert Stevens argued on Tuesday, “The fact conduct is repulsive or offensive does not mean we automatically ban the speech.”
On Tuesday, the justices seemed reluctant to uphold the law, which they consider too broad and too ambiguous to be constitutional or effective. They offered numerous hypotheticals to illustrate how the law would interfere with free speech, including activities (bullfights, hunting and the slaughter of animals) that people might want to video.
Justice Antonin Scalia said, “It’s not up to the government to tell us what are our worst instincts.”