Early last October, the Supreme Court agreed to take on a case pertaining to the First Amendment as it applies to animals. It was a good thing. When the highest court in the land is willing to review a legal matter that affects animals directly, it speaks to the growing concern for their welfare in all sectors of our society.
In the event you haven’t been tuned into this topic, here’s the gist of this issue: On October 6th, the Supreme Court heard a case that questioned the constitutionality of a law, enacted in 1999, to ban the trafficking of "depictions of animal cruelty."
Said law was put to the test when a Mr. Robert J. Stevens created a documentary titled Pick-a-Winna, which included a gratuitous amount of dog fighting clips (from Japan, where dog fighting is legal) and reveled in the gore with voice-over samples like this one: "For centuries, the American pit bull terrier has reigned supreme as the gladiator of the pit!"
In this and two other videos, Stevens depicted pit bulls attacking hogs and wild boars. Stevens also participated in these "hunts," leaving no doubt as to his opinions on the subject of pit bulls, hunting, and dog fighting. Indeed, his stated goal was to illustrate the superior fighting abilities of the pit bull dog.
Under the 1999 law banning depictions of animal cruelty, he was sentenced to 37 months in prison. However, the sentence was challenged in October as the Court weighed in on Mr. Stevens’ right to free speech. If it upheld the ban on these depictions, it would have been the first time the First Amendment had been dealt a legal blow at the Supreme Court level since 1982 (that time, over the issue of child pornography).
At hand was the question of whether some forms of expression are deemed so revolting and vile that it degrades our culture, and whether we should continue to allow them to persist. Clearly, that was the case with respect to child pornography. But would animal cruelty meet the same standards?
It was argued by most animal welfare advocates that pornography depicting animal crushing (a surprisingly popular, if incomprehensible, fetish) and animal-abusive blood sports deserve this special off-limits designation due to their similarity to child pornography. The same arguments apply, after all.
But when the 1999 law was initially enacted, then-President Bill Clinton felt it necessary to limit its prosecution to cases depicting "wanton cruelty to animals designed to appeal to a prurient interest in sex." Animal cruelty, per se, was not so much the issue, claimed Clinton, effectively suggesting the indefensibility of all other animal cruelty depictions in light of First Amendment protections.
How so? It’s because dogfighting, cock fighting, and other blood sports present a unique challenge, detractors of the 1999 law argue. There may be social value to these depictions in an educational, historical or religious context.
Moreover, it was argued, if we banned the depiction of these acts on the basis of their illegality, would all hunting videos be banned in Washington state, where no hunting is allowed? Would we ban gold-hearted prostitutes and firearm-wielding villains in our favorite movies? How far could this reach? In short, would this law be worthy of defense in light of its slippery language?
A clause in the law exempting depictions with "serious religious, political, scientific, educational, journalistic, historical or artistic value" would seem to have improved its standing. After all, Stevens wouldn’t get a pass on his wantonly cruel videos, while the Humane Society's factory farm insider clips would. But would it always be so cut and dry?
I personally can’t imagine that a much-needed documentary on slaughter techniques would be banned, but whether the animal agriculture industry would use its muscle — and this law — to take a production to court if this law was upheld, I couldn’t really say.
Because when the whole law was laid bare for the Supreme Court to dissect, all depictions of animal cruelty were called into question, including the one foul fetish for which the law was intended.
Though none among us animal defenders are in favor of cruel portrayals of suffering animals — far from it — I worried that this law will deservedly get the Supreme Court’s axe, leaving all those who would be protected by a more carefully worded version in the lurch for years to come.
It's also my take that laws like this serve as mere stop-gaps where the criminalization of animal cruelty would suffice — if these laws actually had any teeth. What's wrong with us as a society that we can't come up with a better way to protect animals through some simple enforcement?
So it was that when all but one Justice sided in favor of Mr. "pit bull abusing" Stevens on Tuesday, I had to hold my nose. It stunk, yet I couldn’t disagree with the Court. Not when the breadth of this ban was so grand; it might’ve claimed some of my legitimate, future rights.
What we need is a better ban. Too bad the Court didn’t see fit to leave the door open on alternatives to the 1999 law.
That's my take. As always, I welcome yours …
Dr. Patty Khuly