SCOTUS Hears Arguments In Animal Cruelty Case

By Jim Shepherd

"Use a scalpel, not a buzz saw," was advice offered to Congress yesterday during Supreme Court arguments regarding the Federal Depiction of Animal Cruelty Statute.

The ten year old law was written to outlaw "crush videos" -dominatrix videos in which women crushed small animals with bare feet or stiletto heels, but opponents argue the law is drawn so broadly as to negatively impact everything from investigations into animal cruelty to television shows featuring hunting.

In fact, conviction of Virginia filmmaker Robert Stevens for a series of videos depicting pit bulls in fights and other activities is the reason the case is before the high court.

Stevens was prosecuted under the statute, convicted and sentenced to more than three years in prison. In an appeal, Stevens argued the law was too-broad and violated his constitutional right of free speech. A federal appeals court agreed, overturning the conviction and his three-year sentence.

The Obama administration appealed that decision, and is asking the court to reverse that lower-court decision and find in favor of the statute.

In the arguments, Deputy Solicitor General Neal Katyal made the case that Congress had exempted hunting, educational and journalistic depictions from the law. Because of that supposed exemption, he argued, the court should not wipe out the law entirely, instead allowing the courts to decide on a case-by-case basis whether videos are prohibited.

"Why not do a simpler thing," Justice Stephen Breyer asked, "Ask Congress to write a law that actually aims at the frightful things they were trying to prohibit."

Justice Samuel Alito also asked whether the court should focus on the potential prosecution of hunters. Or, he asked, should we "look at what's happening in the real world?"

That line of questioning has some attorneys and observers "guardedly optimistic" that the court might rule against the statute, overturning Stevens' conviction and simultaneously allaying the fears of a group of opponents that included mainstream and outdoor media and the American Civil Liberties Union.

That optimism was bolstered when Justice Antonin Scalia asked how the word "kill" might be narrowed in the existing statute. After all, he reasoned, "kill can't be narrowed - killing is killing."

Professional Outdoor Media Association (POMA) Executive Director Laurie Lee Dovey was in the media section with a variety of interested parties filing briefs for both sides of the matter. In addition to being awed by the whole process, Dovey told me she was "amazed" at seeing Justice Scalia talking about hunting and fishing from what was obviously first-hand experience.

For Safari Club International's Litigation Counsel Doug Burdin, his guarded optimism was based on a wealth of hunting-related questions and recognition that in some cases, such as bullfighting, what is legal somewhere else is not legal here. That, he says, "tees up the issue" as did supposed exemptions for science and education. As Justice Scalia asked "what if the video isn't for educational purposes, but purely for entertainment?"

Or, as Justice Sandra Sotomayor asked, "What's the difference between this video (Steven's videos) and David Roma's documentary expose about pit bulls and dogfighting?" Those videos, Sotomayor said, "were far more gruesome."

Chief Justice John Roberts also took aim at the exemptions, saying that prosecution under the statute as written would depend on the views of the speaker. "You have organizations like PETA that uses these videos to gain support for their efforts to ban certain conduct. Couldn't Mr. Stevens' videos be seen as an effort to legalize the same conduct?"

As Justice Scalia said, "Child pornography is obscenity as far as I'm concerned, traditionally not covered by the First Amendment. This is something quite different. What if I am an aficionado of bullfights, and I think they ennoble both beast and man, and I want to persuade people that we should have them? I would not be able to market videos showing people how exciting a bullfight is."

In response, the government offered that in debating the law, Spanish bullfighting was described as "educational and artistic."

Continuing that line, Justice Breyer chided the government for their parsing of the language: "Look what you've done," he said, "you've taken these words, which are a little vague - serious educational, scientific, artistic -and you apply them not just to crush videos but to everything from dogfighting to fox hunting and stuffing geese for pate de foie gras, and sometimes quail hunting. In some states these things are legal, and in others they are not and people won't know what is legal and what is illegal."

Justice Breyer seemed to agree with that position, suggesting that this statute should be sent "back to the drawing board" so Congress could create a narrowly written statute that defined the problem and then addressed it.

"It was awe-inspiring to see them in action," Dovey said, "the whole process showed the best qualities of our justice system. I'm really proud of what I saw - and of the POMA Board of Directors deciding to make a stand on this case."

Apparently the halls of the Supreme Court brings out the best behavior in everyone in attendance. Sitting next to Dovey during the arguments was another interested spectator, Wayne Pacelle of the Humane Society of the United States. According to Dovey, Pacelle "didn't stick around long" after the proceedings. Instead, she observed wryly, "he rushed outside and took over the cameras" of the many media in attendance.

No decision will be forthcoming on the case until early next year, but - as always - we'll keep you posted.

Republished from The Outdoor Wire.