Animal Cruelty Videos defended by the Constitution

I disgustingly read this on the Animal Law Coalition website.

The 3rd Circuit Court of Appeals, a federal appeals court, sided in favor of animal cruelty in U.S.C 48. This is a really unfortunate decision.

Here's a little background:

A man named Robert Stevens, a resident of Virginia, was convicted of knowingly selling depictions of animal cruelty.  Stevens was advertising the sale of videos in a magazine called the Sporting Dog Journal -- an underground publication featuring articles about dog fighting.  Law enforcement officers bought a few videos that showed old footage of organized dog fights (circa the 1960s and 70s) as well as more recent footage of recent dog fights in Japan.  A separate video showed footage and detailed how to train dogs for hunting wild boars.  The videos contained narration and commentar by Stevens as well as literature that was written by Stevens.  As a result of the videos, law officers got a search warrant and executed the warrent -- finding more copies of the videos and other dogfighting merchandise.

The judges sided with Stevens, citing that the Stevens was covered under the 1st Amendment right to free speech. The reasons were as follows:

1) On balance, animal rights do not supersede fundamental human rights. While the government can and does protect animals from acts of cruelty, to make possession of films depicting this abuse would infringe on rights to free speech.

2) The Supreme Court rarely finds such an interest for content based restrictions. When it is done, it is done so because it related to the well-being of human beings, not animals. The example given was child pornography, where materials produced would have a lasting and long-term effect on the child while animals will not continue to suffer after the abuse has taken place.

3) The court decided that the law was constitutionally overbroad. While the significant government interest was described as being to "prevent cruelty to animals that state and federal statutes under-enforce." This makes sense, but the court deemed that it was overbroad because "If a person hunts or fishes out of season, and films the activity and sells it to an out-of-state party, it would appear the statute has been violated. Similarly, the same person could be prosecuted for selling a film which contains a depiction of bulfighitng in Spain if bullfighting is illegal in the state in which the person sells the film."

You can read the rest over at the Animal Law Coalition.

Anyone who reads this blog regularly knows that I generally side with more rights under the Constitution, vs fewer rights. But this one is pretty amazing to me. So someone can actually host a dog-fight. Film the adventures.  Then sell the videos to prove that it happened and that they were there and get off scott free.  This appears to me to be the equivelent of me shooting someone in a country where killing wasn't illegal, and recording the footage of the man dying, and then selling the videos. How did we uphold that THIS is ok?

To put it another way, under the state law of Ohio, a person could be arrested for owning more than one 'pit bull' -- even without the city having to prove the dogs are dangerous or that the dog is actually a "pit bull' at all.  In many Cincinnati, they could be jailed for owning a pit bull at all. However, they could host dog fights, film the footage, and sell the footage of the dogs fighting -- now openly since it's been upheld in court - without punishment.

It appears that dog fighters now have more rights under the Constitution than I do in a lot of places.  That's pretty messed up. As a general rule, if something is deemed a felony in all 50 states, making a profit off of videos depicting it should be illegal also. 

Comments

[EmilyS]

question: Is it videos in particular that cause you to question the ruling? What about books that depict dogfighting-- are they OK or not? I think you know where I'm going with this...

Yes, horrific as it may seem in cases like this, the first amendment does trump a lot of other unenumerated "rights".

(in your hypothetical Ohio situation, law enforcement could use those tapes as evidence of illegal activities. It would be the activities, not the depiction of them, that would be prosecuted. There was a recent episode of Animal Cops in which they looked for pictures of cockfighting for just that purpose)

[Caveat]

Isn't there a law on the books stating that you can't profit from a criminal endeavour?

I thought there was and that it was enacted to prevent high profile criminals from selling the rights to their stories for films, writing books about their exploits, etc.

[Caveat]

PS What you describe fits my definition of pornography.

I don't watch the stuff that circulates which I call cruelty porn because I have a good imagination. I also don't want to become desensitized to violence and perversion (<--haven't even seen Pulp Fiction or A Clockwork Orange for those reasons, walked out of The Devils, Straw Dogs and Dune).

[Brent]

I know exactly where you're going with this...and yeah, it's not as clear cut as it first seems. If he had filmed the video (or taken photos for a book) and we could prove he was there, then obviously he could be busted for having attended the dog fight. However, the footage appears to be old footage or filmed in another country. I agree that in many ways that is the equivelent to me filming a bull fight in Spain and then selling a video of it.

At the end of the day, I have a problem with the videos. I have a problem with any book that is documentary-style or "how to" guide to dog fighting (this would be different than a work of fiction where people attend a dog-fight). It just seems wrong to be able to profit out of encouraging people (or train people) how to partake in an illegal activity. I don't think we'd allow people to write books on "how to rob a bank" or "how to create a snuff film" -- dunno. I realize it's not a crystal clear scenerio...but it is disappointing to me.

[Brent]

Actually Caveat, I think this is a much different standard than "pornography". There is nothing illegal happening in pornography. I don't like it myself, but I understand how it's withheld Constitutional debate. It's not illegal to be naked or have sex. The dog fighting thing is all felony illegal...I think makes for a whole different argument.

[Becky]

All constitutionality or 'UN', this is a very sad statement on humanity. What is wrong is wrong. Those who use the law to protect or defend themselves while committing immoral acts are immoral.

[EmilyS]

Actually, I'm pretty sure we DO allow people to write about how to make bombs, even atom bombs. And then there was the controversy over "snuff" films which (supposedly) depicted actual murders. All ruled permissable.

One of the challenges is that technology has advanced so far that it's possible to make a "fiction" film that looks 100% real. So where would you draw the line?

I agree we have a very debased culture. The kinds of actions and language that are considered normal and acceptable make me shudder. Heck, the kind of language I hear, and the tshirts I see in public make me squirm.

But, as with our dogs, laws are not the answer.

[MichelleD]

It seems like the 1st Amendment is the only one that gets upheld anymore. We need to find a way to argue that owning a pit bull is a freedom of expression guarenteed in the first amend.

OT: pornography...why is filming sex, paying the "actors", and selling the film ok but prostitution isn't? The isn't a defense or slam of either one but I don't get the difference between the two. Prostitutes should get a polaroid camera and take a picture of the act - the act (prostituion) would be free but then you'd have to pay for the picture (porn).

The statement that the animals would not suffer from the abuse after the abuse has taken place is complete nonsense! And what about children that are too young to remember the exploitation? They wouldn't suffer afterwards so is it ok then? Since when is suffering DURING something ok its just about long term effects? So if I murder someone they won't be suffering afterwards - so that is ok? That is ridiculous...

[AnnaC]

In regards to allowing folks to write "how to break the law" - sorry to say but I think that in fact we do allow this. I watched a fascinating documentary last night on the History channel on Nazism in the US. A crazy dude named William Peirce wrote a book entitled "The Turner Diaries" which basically became the handbook for the American Nazi's of the 80's and 90's, including the Oklahoma City bombing. It was, in fact, a novel and not a non-fiction "how to" but still became legendary and useful to those who wanted to accomplish the events in the book. http://en.wikipedia.org/wiki/Turner_Diaries

[Caveat]

MichelleD hits the nail on the head - as usual!

[Marie]

"There is nothing illegal happening in pornography."

I beg to differ. Child porn is illegal last time I checked. If they can have different levels in that, then they could have different levels in video's of animals being harmed couldn't they?

I don't see how it can all simply fall under the right to free speech. It boggles the mind.

[Becky]

Marie, child porn IS illegal and from what I have heard/seen, the guidelines are extremely strict regarding photos taken and sold.

I immediately agreed w/ Caveat and viewed the word 'pornography' as meaning something deeply and genuinely offensive to 'decent' people. But I've looked it up and the word derives from the Greek pornographia, which derives from the Greek words 'prostitute', 'grapho', "to write or record"), and the suffix 'ia', meaning "state of", "property of", or "place of"), thus meaning "a place to record prostitutes".

I do recall that at least in my day (70's thru late 80's?) that ART was differentiated from pornography by it's 'redeeming' qualities. ie; If nudity and sex were not presented w/ any quality such as, a moral learned, pure artistic aesthetics (admittedly difficult), or even a STORY, then it was 'pornographic'.

NOW I see that the word derived from recording prostitution! And here, I agree w/ Michelle. Of course I am no proponent of prostitution, but it makes no sense that we have laws against a person paying money for sex, yet it is OK to profit from movies demonstrating violent felonies that inflict pain and suffering .

I am also no proponent for drug abuse. But tell me how it is that the government prosecutes prostitutes and people who grow native American weeds on their own property, yet it is FINE to attend and record the illegal activity of dog fighting?

I do not agree that this is remotedly comparable to hunters photographing a LEGAL sport.

Still, Michelle is right. We are screwed. Our government only protects our rights that they want to protect.

If our courts determine that the filming, sales, and profits from illegal activities such as the torture, murder, and infliction of injury, misery and pain on innocent animals is to be protected by our Constitutional right to free speech, then we will have to argue all the harder that OUR rights as citizens are to be protected from arbitrary laws, illegal search and seizure.

Unfortunately, the welfare of our pets and cherished family members who are not human are not protected.

At one extreme, Animal Rights do not provide ANY rights to our animals, other than what THEY, AR, define as their rights. AR has set themselves up as judge and jury of who deserves to live and who deserves to die.

At the other extreme are those (and they get nasty!) who strictly adhere to Americans' Constitutional rights, and who maintain that animals do not have ANY rights under our laws.

Michelle is right, AS ALWAYS. And I agree w/ her that the IDIOTIC argument about animals not suffering from abuse after the abuse has taken place is complete nonsense! She says, 'Since when is suffering DURING something ok its just about long term effects?'

We will lose on this one -- not because we are wrong, but because our courts do not CARE about dogs or any other animals, OR wrong doing against animals.

I sincerely do not believe that the First Amendment was intended to protect people who are profiting from the illegal abuse and suffering of others, even if the others are not human.

But we really don't care about intent, do we? We don't really care who gets hurt and who suffers. We don't really protect dogs, do we?

We just protect 'our rights', right or wrong. Somehow, we've got to protect OTHERS from the exercising of our 'rights.'

[MichelleD]

Thanks for the kind words. Like Becky, I do not think the 1st Amend was ever intended to defend this kind of thing or even pornography for that matter. But to protect the rights of people to rage against the machine - but I'm not a constitutional lawyer so can't speak to the way the constitution is now getting upheld based on the popular beliefs of the time.

Here is something in the ruling that MAYBE could work in our favor: "[I]f we accept that the government interest served by § 48 is to prevent animal cruelty, the statute is-by its very terms-underinclusive....[and] overinclusive. In short, the research and empirical evidence in the record before us simply does not support the notion that banning depictions of animal cruelty is a necessary or even particularly effective means of prosecuting the underlying acts of animal cruelty. Much less is it the ‘most expeditious' or the ‘only practical method' of prosecuting such acts, as is the case within the realm of child pornography and child sexual abuse. For these reasons, § 48 is not narrowly tailored using the least restrictive means."

Has anyone used this argument in court for fighting BSL? Controling dangerous dogs thru BSL is the epitome of overinclusive/underinclusive and the most restrictive means I can think of - well, at least the outright bans. HOW THE HELL DOES THIS GET UPHELD!?!?

[EmilyS]

Michelle, when courts have upheld BSL (and it's a mixed bag), they do so generally on the grounds that localities have great leeway to establish rules and regulations for their citizens, even when they are stupid, unjustified rules (this is actually pretty much what the Ohio Supreme Court said in overruling the lower court's favorable-to-us decision in Tellings.) Courts have ruled that dogs are property and people have property rights in them. But there has never been a definitive ruling that owning a PARTICULAR type of dog is a constitutionally protected right. WE make the distinction; the courts don't.

Favorable rulings for us lean more towards "is there due process" if the State is going to seize property (dog), but as long as the localities sets up a system in which the owner knows what the rules are and has a forum for contesting property seizures, the courts allow BSL to stand. To the courts, as long as you can own ANY dog, you don't have a protected right to own a particular dog.

Sucks, but that's the way it seems to be going.

[MichelleD]

It was kinda a rhetorical question but I'm glad you posted as its the unfortunate truth ... I think you've posted before "Now will people get the courts aren't going to save us" or something like that, and I agreed with you. BUT the Federal courts seem to issue rulings based at least loosely on the Constitution - at least in this case. At least they seem to be remembering we HAVE a Constitution...

Take the quote I posted: "using the least restrictive means", "the statute is-by its very terms-underinclusive....[and]overinclusive" Does this only apply some of the time - when they feel like using that criteria? Only for the first amendment? Only for federal laws?

Maybe we're barking up the wrong tree and we should start fighting for some "reasonable proof" clause that all the laws have to have some cursory level of analysis and corresponding PROOF to back up that its effective and the best policy? I thought the Constitution should have had our back on that but not so...

Or my plan B has always been to start raising hell to get Labradors banned...maybe that will wake people up.

[Caveat]

Watch the Lab ban thing. I did a spoof post about that in August, 2006 and got so many hits my blog was hung. Had to triple my bandwidth to stay online. There were some steaming mad dog snobs the next day too, when they realized they'd been merrily crossposting without having read the tiny disclaimer at the bottom or hitting the failsafe link to the gotcha explanation.

It was a riot! Suckered by the 'pit bull' lobbyist. Heh.

What you are saying is basically what we are arguing up here, since we don't have property rights in Canada that are codified (it's more common law and precedent for prop rights).

Overbroad means it's not targeting the purported problem - the periphery is much bigger than the core - ie, the lookalikes vastly outnumber the named breeds.

So, Nelson, for example, now argues that 'pit bulls' do more damage and are therefore more dangerous and that there is a rational connection to support the ban. A lot of others have picked up this new meme. Even Nelson has said publicly that 'pit bulls' aren't more aggressive/don't attack more often and that breed ID is not especially credible.

How this new thing is being proved and how learned judges are swallowing what amounts to campfire tales confounds me.

We made some headway with getting 'pit bull terrier' thrown out as unconstitutionally vague, since it's not a breed of dog. We had the Gitmo-style hearsay evidence which was to be receivable as proof that a dog was a 'pit bull' - with no vetting, swearing or deposing of the witness who provided the ID certificate - tossed as violating the right to trial fairness.

We are going to the Court of Appeals on Sept 15 and 16 where we hope to have the whole mess thrown out.

It will be a very nice precedent for everybody, we hope.

We'll see. It's a gamble, that's for sure.

I couldn't believe the Ohio Supreme ruling. It didn't make sense to me. But then, very few of them do.

I've reached the conclusion that something can be legal and still not be fair or decent. It helps me cope to remember that.

[s kennedy]

I saw 3 different sites talking about this case.(AR,con law, NY Times)... The AR site leans toward HSUS and the const atty professor leans strictly toward the law. I suggest you read the con law prof site. Then u would understand why the court made the decision. I certainly don't want to see/buy/sell a dogfighting video but that's not what the case stands for in the ruling.
The Legal Satyricon
http://randazza.wordpress.com/2008/07/20/united-states-v-stevens-protecting-animals-is-not-a-reason-to-amputate-part-of-the-first-amendment/ by Prof. Marc J. Randazza

I also believe you can see many illegal things on both TV, and online.[In other words its not illegal to watch illegal acts unless its child porn or perhaps a few other selected topics)
I admit by only reading the AR site I was baffled. They left out pertinent info. The law as actually written would make too many things a crime that are not crimes. Narrowly tailored was the instruction by Clinton when law was drafted (law was aimed at crush films) And may I put in a word about vagueness or overinclusive, as they did in the Denver breed ban which was dismissed in March 2008. That tact doesn't work very well in fighting BSL. Owning a dog is not a fundamental right and we all know that. BSL is based strictly on rational basis, the lowest level of scrutiny and the easiest for govt to use. Almost any evidence can be used, and they use it. That is why we are not winning in droves. Reasearch the BSL cases and look at the evidence. They had evidence but the people bringing suit didn't counter it heavily enough (it is a very high burden of proof to counter it) That is why most constitutional cases which are won, are against strict scrutiny cases (speech, religion, etc)--not health/safety issues. It is probably less difficult to win the strict scrutiny cases bec there must be a compelling govt interest to uphold the law. And as the SF court has said, CA has no compelling interest in stopping gay marriage.

[Becky]

Well, back to an earlier post -- child pornography is not illegal because of the long term harm it does the child. That would be to say that even if it inflicted suffering of the child during the acts, if it did not adversely affect the child's soul and being forever after, it would be OK. And what does that have to do w/ the illegality of possessing the materials or viewing it? THAT doesn't harm the child. The acts that were filmed harm the child.

So it is either right or it is wrong to view, possess, purchase or sell photos/videos of this crime. This decision supercedes the First Amendment and it supercedes it because it provides absolute proof of this crime being committed.

Animal's rights are not protected by the Constitution, still dog fighting and animal abuse are crimes. The evidence is proof of the commission of these crimes. If child porno supercedes the first amendment, then so should animal abuse to these degrees. IF we allow people to possess and profit from films of this sort (as well as snuff films and the like), we are in many senses condoning these acts.

So how come most murderers aren't permitted to earn a profit from their crime -- as in selling their books?

I'm no law student, but none of these arguments make sense to me. They sound pretty concocted. The bottom lines seems to be that we absolutely cannot tolerate the sexual abuse and exploitation of children, in any form. Why is this not so for animals?

[Becky]

Forgot to add this note: Please let me know if you've heard of this, because I have not been able to find the story. My son told me of a story he read about an artist in another country who has/had a dog on display, and it was displayed throughout it's starvation to death. It was protected as 'art'. The artist is considering doing it again. As it said in 'A Time to Kill', some people just need killing.....

[Caveat]

Animals should be protected, much like children - the similarities between them vastly outweight the differences, in my opinion.

However, it is a very slippery slope, as we all know.

In order to offer animals other than humans equal protection, there would have to be an almost cataclysmic change in our societies and in the millennia-long practices which have allowed us to survive and thrive - because of other animals.

I'm no lawyer either. It seems to me though that the child abuse analogy is a good one.

Why is possessing pornography involving children a crime, if it's not because the media themselves are proof that a crime was committed? Or is the possession, reproduction and distribution the crime, in addition to the original offense? Is it illegal to create an animated cartoon on the subject, or to write a book about it?

Since dog fighting is a felony, I don't understand how someone can profit from evidence of that felony.

I do understand what S. Kennedy said, I know that dog ownership is not a right in itself and I also understand that when infringing on rights, it is a slippery slope.

I also agree that we need to keep refuting the 'evidence', in and out of the courtroom, because in a lot of cases they seem to arguing at cross purposes.

It's an interesting question indeed.

[Brent]

Becky, here's a link to Wayne Pacelle's blog about the dog that was abused as "art". I'm not a fan of Pacelle, but I can't disagree with him on this one. There are also some other links to stories on his blog post. You can read more about it here:

http://hsus.typepad.com/wayne/2008/04/street-dog-art.html

[s kennedy]

If everyone reads what the con law prof-atty says, I think it will become clear. First amendment rights, esp speech, are very daunting, but they claim this case (the way the law was written) is an easy con law case, with a difficult political aspect. Please read what the professor says. I have no doubt he is right. You will notice that the law was set up to stop people from sending it into interstate commerce, but that isn't the problem with the case. It is content based and does not meet the legal requirements that they use in determining first amendment speech cases. This is exactly why the ACLU deals in unpopular cases--if those unpopular cases were never done, our rights would be even less than they are now. The rules should apply to all. And in BSL bec the dogs are not at the strict scrutiny level, we end up losing. Some of the time.

[Becky]

Brent, I went to Pacelle's piece and have to admit he came across really well. Unfortunately the photo of the dog and the vision that I got made me so sick at my stomach I almost threw up. When people use stuff like this, or the stuff like the videos from which they hope to profit, I wonder about how sick our world is becoming. I also worry about what is to become of our dogs because the GP has become so irresponsible with their children and their pets.

[Caveat]

Snopes was looking into the art exhibit thing in April, no updates.

Could just be a bid for attention, staged by the militant AR/AL crowd.

[s kennedy]

If we want to use the US Constitution to try and protect our OWN rights, then we need to be tolerant of those subjects that we might not like. People don't like pitbulls, but we want them to see that we have our rights when they try and seize our dogs. The same thing goes for the dog videos case. This cannot be overlooked, otherwise WE are the ones being hypocrites. The case is not about whether one can make $ off a video that someone else made. The AR site does not go into detail explaining that the law is both over/under inclusive. Beware wanting cake and then lamenting when it's taken from you.