The new case arose from the conviction of Robert J. Stevens, a Virginia man sentenced to 37 months in prison for selling videos of pit bulls fighting each other and attacking other animals. A 1999 federal law makes it a crime to create or sell such videos and other depictions of cruelty to animals.
All 50 states ban the cruelty itself. The federal law is aimed solely at depictions of it.
In Mr. Stevens’s case, his lawyers told the court, “there is no claim that the defendant was himself involved in acts of animal cruelty or was even present at their commission.” The lawyers also said that many, if not all, of the acts documented were lawful in the jurisdictions in which they were filmed.
Some of the footage on the videos Mr. Stevens sold was decades old, and some of it showed dog fights in Japan, where they are legal. But the 1999 law requires only that the activities shown be illegal where the video was bought or sold. The law contains an exception for materials of “serious religious, political, scientific, journalistic, historical or artistic value.”
Last summer, by a vote of 10 to 3, the United States Court of Appeals for the Third Circuit, in Philadelphia, reversed Mr. Stevens’s conviction and struck down the law under the First Amendment. The majority said that if the law stood it could make it a crime to sell videos of bullfighting in Spain or of hunting out of season.
The Supreme Court has placed only a few kinds of speech beyond the protections of the First Amendment, among them obscenity, incitement, threats, fighting words and, in 1982, child pornography.
In a supporting brief urging the court to hear the case, United States v. Stevens, No. 08-769, the Humane Society of the United States said that “gruesome depictions of animal mutilation targeted” by the law should join the list because they “simply do not merit the dignity of First Amendment protections.”
Writing for the majority in the Third Circuit’s decision, Judge D. Brooks Smith said animals were not affected by videos showing cruelty to them in the same way minors were affected by child pornography.
“While animals are sentient creatures worthy of human kindness and human care,” Judge Smith wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace.”
The 1999 law was prompted by so-called crush videos, in which women step on small animals. A House report said the videos catered to “a very specific sexual fetish.”
“In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter,” the report said. “The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”
Congress found that there was an active market for crush videos in 1999, with thousands of them available for $15 to $300 each.
When President Bill Clinton signed the bill into law, he issued a
statement instructing the Justice Department to limit prosecutions to
“wanton cruelty to animals designed to appeal to a prurient interest in
sex.” But court papers indicate that there have been three prosecutions
under the law, all involving videos of dogfights.