Does the Constitution of the United States protect dog fighting or other abusive or cruel behavior towards dogs or other animals?
The question seems so absurd as to barely ignite a grunt in response. But it's a more serious issue than it seems at first blush. In fact, it's so important that the issue has reached the U.S. Supreme Court, which will decide during its current Term whether the Constitutional protection of freedom of expression under the First Amendment extends to depictions of dog fighting and other cruelty. The outcome could have significant impact throughout the nation, not only on those who engage in dog fighting or similar behavior, but even those well-intended individuals and organizations engaged in rescue, cruelty prevention, and other socially-desirable activities.
VIDEO VIEWS
Only about 1% of all cases that are appealed to the Supreme Court are accepted by that tribunal, which has discretion over which cases to hear. To reach that pinnacle, a case generally must have national importance and be subject to significant uncertainty. It also helps if the case reflects hot-button contemporary concerns.
The dog-fighting case that was argued before the High Court this fall fits all of these characteristics. No, it does not involve Michael Vick or any of his escapades. But it does raise issues that caught the public's attention in the imbroglio regarding the professional football player's promotion of dog fighting activities at his capacious estate in Virginia.
DOG DECISIONS
The Supreme Court rarely hears cases involving dogs. The most recent decisions have involved drug-sniffing law enforcement canines. In this case, however, the dogs are the subjects of impropriety rather than the tools of law enforcement.
The case before the Supreme Court last year, entitled U.S. v. Stevens raises an intriguing issue: whether a Federal law banning the manufacture or sale of videos depicting dog fighting and other animal cruelty is constitutional. The case arose from the conviction of a Maryland man, who was sentenced to more than three years in jail for selling videos of pit bulls fighting each other and attacking other animals, which viola ted a 1999 Federal law making it a crime to create, possess, or sell any "depiction of animal cruelty."
All 50 states, including Virginia, where Vick conducted his escapades, ban dog fighting and animal cruelty. But the Federal measure is aimed only at depictions of cruelty, not actual participation in it.
The defendant in the case was not himself involved in any dog fighting or other animal cruelty. Rather, he was convicted of plicing together videos of vintage dog fights, some of them from Japan, where the practice is legal.
The Third Circuit Court of Appeals, sitting in Philadelphia, reversed his conviction on grounds that the law was unconstitutional under the First Amendment. A 10-member majority of the 13-member Court reasoned that the law could make it illegal to show videos of bull fighting from Spain (where the practice is legal and even a national pastime) or even of hunting out of season. The majority view contrasted with that of the three dissenting judges, who viewed the measure as a permissible way to combat animal cruelty. They opined that the First Amendment does not prohibit reasonable regulations of activities that promote illegal behavior.
"HARD" HISTORY
The Stevens case raises a number of issues involving the rich history of the First Amendment and the sparse historical background of dealing with animal cruelty cases under that provision. The passage of the Federal law a decade ago was prompted by so-called "crush" videos, including those showing women stepping on small animals. A Congressional study reported that these videos catered to a very specific sexual fetish, with an active market for videos selling from $15-$300, or more.
The legislation was signed into law by President Bill Clinton, who instructed the Justice Department to limit prosecution to "wanton cruelty to animals designed to appeal to prurient interest in sex." However, over the years, the law has not been enforced in that way. The only three prosecutions, like the Stevens case, all involve videos of dog fighting.
A century ago, legendary Supreme Court Justice Oliver Wendell Holmes, Jr., early in his three-decade career on the High Court, uttered the famous aphorism that "hard cases make bad law." By that, he meant that cases with difficult factual backgrounds often yield legal decisions that are troublesome. The Stevens case fit into that category.
The First Amendment advocates maintaining that the prosecution for showing lawful activity impairs Constitutional freedom of expression. They argue that deference to the First Amendment should permit the manufacture and distribution of these videos if the public wishes to buy them.
But proponents of the protection point to the adverse effects of these characterizations. The Humane Society of United States, advocating against First Amendment protections, asserted in a brief to the Supreme Court that "gruesome depictions of animal mutilation . . . do not merit the dignity of First Amendment protections." The Society and other supporters of the law equate it to other measures that ban certain anti-social types of graphic communications, such as child pornography.
That position is rebutted by the First Amendment advocates, who assert that animals are not affected by videos showing cruelty to them the same way that minors are affected by child pornography.
These contrary positions make the Supreme Court's decision highly awaited in many courts, including those who follow the First Amendment as well as those condemning animal cruelty.
TWIST AND TENSION
However, there may be another twist to the Stevens case.
A decision in the case is expected some time this spring. If the Court were to uphold the law, despite the First Amendment arguments, the measure could arguably be invoked in far more innocuous situations. Some have theorized that it could be used against animal cruelty organizations, sanctuaries, the media, or others who show videos of animal cruelty to educate the public, advocate for prosecution or legislative action, or for other benign purposes. Thus, the law poses a two-edged sword that alarms even some animal advocates.
The dog-fighting video case is a rarity. But it may go down in history as a significant decision reflecting the tension between freedom of expression and efforts to combat animal cruelty.
About the Author: Marshall H. Tanick is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A., in Minneapolis and St. Paul. He is Certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA), is a member of the board of directors of Animal Ark, a no-kill shelter in Minnesota, and represents a number of owners of animals and animal-related organizations.
