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April 21, 2009

Supreme Court to Decide on Depictions of Animal Cruelty

It’s a rare circumstance when the U.S. Supreme Court agrees to review a case related to animal cruelty, but yesterday was such a day. The nation’s highest court granted a petition to examine a case made possible by the enactment of a 1999 law banning the commercial sale of videos depicting extreme and illegal acts of animal cruelty. The measure, the Depiction of Animal Cruelty Act—carried a decade ago by Congressman Elton Gallegly (R-Calif.)—was prompted in part by an HSUS investigation that uncovered an underground subculture of “animal crush” videos, where scantily clad women, often in high-heeled shoes, would impale and crush to death puppies, kittens and other small animals, catering to those with a sexual fetish for this aberrant behavior. Surprisingly, we found thousands of separately produced videos available for sale on the Internet—causing untold suffering to thousands of animals.

After the law passed, the purveyors of crush videos fled the business, knowing that we could locate their videos and bring their illegal commerce to the attention of federal enforcement officials. The market for their product collapsed. The law had an immediate and sweeping impact on the industry, but it was also put to use to arrest several people involved in distributing videos of dogfighting, which of course is a felony offense in all 50 states and a federal felony as well. It was the arrest of Robert Stevens in Pennsylvania for this distribution that led ultimately to the case now before the Supreme Court.

Dog at fighting raid in Arizona
© The HSUS

A federal jury convicted Stevens of violations of the Depiction of Animal Cruelty Act in 2005. However, last year, the U.S. Court of Appeals for the Third Circuit ruled that the law was unconstitutional, deciding that preventing animal cruelty is not a compelling state interest.

In response to the law being struck down, crush videos—like a bacterial infection responding to the withdrawal of an antibiotic—have surfaced again and spread.

The Solicitor General filed a petition to have the Supreme Court review the case, and The HSUS filed a brief in support of the government’s position. The Court granted the government’s petition, and the case should be heard sometime this fall.

The Depiction of Animal Cruelty Act criminalizes depictions of animal cruelty that have no significant redeeming political, social, or artistic value. This is essentially the same test for stopping the production and sale of certain forms of human obscenity. There is no reason that videos depicting cruelty should get more First Amendment protection than pornography does.

Indeed there are strong arguments that such material, like child pornography, should not be entitled to any First Amendment protection at all. The makers and sellers of these videos are not making an argument or expressing a viewpoint—they are simply profiting from extreme cruelty, from predation on the weakest among us. This is a far cry from the values that the First Amendment is supposed to protect.

We wouldn’t allow people to sell videos of people actually abusing children or raping women, and the same legal principles are at hand with malicious acts of cruelty, which are a felony in some form in every state. The federal Depiction of Animal Cruelty Act is an essential complement to the state anti-cruelty and anti-animal fighting laws, which alone do not equip law enforcement with the tools to stamp out the national and international traffic in the videos that are anonymously produced and staged for the sole purpose of inflicting cruelty. The sale of these videos is often the only public act that law enforcement can identify, and the revenue from the sale of these videos enables even more criminal behavior. We should not give the perpetrators immunity to stage illegal animal fights and, if they avoid getting caught, to profit from the sale of videos.

Animal cruelty laws are older than our Republic, and reflect our country's best values of decency and mercy. The sociological evidence is now unambiguous that people who commit egregious acts of cruelty are often involved in other criminal behavior, including violence against people. Our society’s interest in cracking down on crush videos and staged animal fighting films is not only compelling in the legal sense, it’s vital to protect animals and the larger community from violence, drug trafficking, and other crimes that flow from the morally deadened hearts of people who perpetrate malicious cruelty.

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