Goin' to the dawgs

Defense lawyers are waiting for the highly anticipated decision in United States v. Stevens (docket #: 08-769).

On Oct. 6, the justices heard oral arguments in the case, which examines the constitutionality of a federal law that criminalizes the production, sale or possession of depictions of animal cruelty produced for commercial gain. Congress passed the law after hearing about "crush videos," which feature women in high stilettos crushing small animals to death.

Federal prosecutors in Pennsylvania charged Robert Stevens, a pit bull afficionado, under federal law for three videos showing animals subjected to violence. They are likening the videos to child pornography, arguing that they have no social value that would justify constitutional protection. After a jury trial, Stevens was convicted, but the Third Circuit US Court of Appeals overturned that conviction.

At oral argument, Chief Justice John Roberts asked Neal Katyal, the Principal Deputy Solicitor General, who argued for the federal government in defense of the law: “If you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?”

Katyal gave an unsatisfactory response after which Roberts answered his own question by quoting from New York v. Ferber, 458 U.S. 747 (1982) saying speech is unprotected when “the evil to be restricted so overwhelmingly outweighs the expressive interest at stake.”

It is possible that the Court will create another unprotected category of expression if it believes that the ill effects of the "speech" far outweigh the ill effects of the First Amendment interest. Stevens argues that his videos are about the "virtues" of pit bulls, arguing that they cannot be classified as "evil". His argument centers on the educational value of a dog fighting documentary.

Throughout the land there are laws that punish animal cruelty without punishing depictions of it. The third Circuit found that the government's interest in depicting animal cruelty does not rise to the same level as eradicating child pornography. Civil libertarians are worried about going down a slippery slope when you create another unprotected category. They argue that courts will begin to criminalize all sorts of violent expression, thereby endorsing the "violence as obscenity" concept.