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Does the First Amendment protect dog fights?

Jessika Walsten |
January 17, 2010 | 4:10 p.m. PST

Staff Reporter
The release of the award-winning film Amores Perros was controversial.

But the controversy from the movie did not involve humans. It involved dogs. Multiple scenes graphically depicted the world of dog fighting.

Nine years after its release the freedom to watch movies with imagery like Amores Perros' is in danger.

A case currently being reviewed by the Supreme Court could make movies with these types of depictions illegal regardless of the laws where the movies were filmed.

On Oct. 6, 2009, the Supreme Court heard arguments in United States v. Stevens, a case based on a 1999 law designed to stop extreme forms of animal cruelty.

Eighteen U.S.C. Section 48 makes it illegal for someone to "knowingly create, sell, or possess depictions of animal cruelty with the intention of placing those depictions in interstate or foreign commerce for commercial gain."

The law seems rather straightforward. Yet, when looked at closely, the language raises some issues.

Andrew Tauber said, the concern "is that the statement as written is extraordinarily wide."

Tauber is a lawyer who helped write a Supreme Court brief for the case on behalf of the National Coalition Against Censorship and the College Art Association.

The law could include a variety of depictions from hunting videos, to pictures of bullfights, to drawings of dogfights.

Lawmakers added an exclusion rule to the statute to target its broadness.

This rule said the law "does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

For Amores Perros, the exclusion rule would likely protect it from prosecution.

The law was originally passed to stop crush videos, which showed women stabbing and stomping on small animals with their bare feet or wearing high heels.

State laws already made it illegal to participate in acts of animal cruelty, including dog fighting. Despite that fact, the federal law was enacted anyway.

U.S. v. Stevens does not involve crush videos.

Robert Stevens was the first person prosecuted under Section 48, and in 2005 he was sentenced to 37 months in prison by a Pennsylvania federal district court.

Stevens sold and distributed videos, showing organized fights between pit bulls. His defense stated the videos were produced to show how to train dogs for hunting, and the dogfight images were used to illustrate how dogs should not be trained.

The federal district court did not charge Stevens with participating in the dogfights, nor was he accused of actually taping the dogfights.

Shortly after the district court decision, the case was appealed to the Third Circuit court and overturned.

It was then appealed to the Supreme Court, and it now awaits their decision.

More than Stevens' fate is at stake with their decision.

The Supreme Court must decide if the 1999 law is unconstitutional under the Free Speech Clause of the First Amendment.

To make that decision, the Supreme Court will consider previous cases and related concepts.

In 1982, the Supreme Court declared an entire category of free speech unprotected with its conclusion in New York v. Ferber.

The Court ruled that a New York law criminalizing the distribution of material containing child pornography was constitutional, and thus the First Amendment did not protect child pornography.

Marc Randazza, a First Amendment lawyer and the editor of the Legal Satyricon, wrote in a Satyricon entry that child pornography "is a category of expression in which the crime and the speech collapse into one another."

Child pornography cannot be expressed without harming a child, merging the expression and crime, said Randazza.

So, does the Stevens case meet the same exclusion standards as Ferber?

No, Stevens did not participate in the criminal acts of animal cruelty. His expression of the acts did not merge with the actual crimes.

In Chaplinsky v. State of New Hampshire, the Supreme Court developed a balancing test that weighs "the value of the speech against its social cost."

This decision opened the door for exceptions to the First Amendment, and could be employed in the Stevens case.

To decide whether the Stevens videos have any value, the videos would need to be viewed. But they cannot be watched because of Section 48 and the court's ruling in the case.

Another concept comes into play with the Supreme Court's decision.

Obscenity is a category of speech that refers to language that is "patently offensive" to the audience.

"Trying to model a First Amendment exception based on obscenity is a pretty bad idea," said Bob Corn-Revere, a lawyer for Davis Wright Tremaine with experience in First Amendment law.

There is no question that some people would find the images depicted in the Stevens videos obscene. But what is obscene to one person may not be obscene to another. So, the test cannot be objective.

If the Supreme Court rules in favor of the United States and against Stevens, freedoms granted by the First Amendment would be in danger.

Even though the law specifically refers to restrictions on the sale of such videos, critics of the law are concerned the Supreme Court's decision could open the door to other restrictions.

Once another exception is made to free speech, it is easier for more and more exceptions to be made, Randazza said.

If an exception is made it would also have a chilling effect, Tauber said.

Artists and movie producers would not know if their work is protected, making them not want to complete projects even if they would be protected.

Tauber said the chilling would then sweep many important conversations under the rug.

While it is impossible to predict the Supreme Court's decision, the transcript from the case's hearing does provide clues as to what way the court leans.

The transcript suggests the justices are aware of the issues with the 1999 law, including the vagueness of its language and its broadness. In the transcript, Justice Breyer even suggested lawmakers rewrite the law specifically for crush videos and dogfights.

It is not known when the Supreme Court will release its decision. In the meantime, Steven's fate and the fate of the First Amendment hang in the balance.



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