U.S. Supreme Court strikes down law that banned cruelty videos

From ANIMAL PEOPLE, May 2010:

WASHINGTON D.C.–The U.S. Supreme Court
on April 20, 2010 by a vote of 8-1 struck down
18 U.S.C. § 48, the 1998 federal law that
prohibited interstate sales of video depictions
of illegal cruelty to animals.
The law was written to ban “crush
videos,” a form of pornography in which the
participants trample small animals, but the only
case brought to court under 18 U.S.C. § 48 was
U.S. v. Stevens, a 2004 federal prosecution in
Pennsylvania of Virginia resident Robert G.
Stevens for selling videotapes of Japanese
dogfighting and “hog/dog rodeo.”

A second case, pending in Missouri, was
dropped on April 22, 2010, because the Supreme
Court ruling meant it could not be prosecuted.
Jarrod Hayn, 38, of Kampsville, was indicted
on March 11, 2010 for selling a 40-minute DVD
inviting viewers to “Come and ride along with me
while I drive on some of the most deer-infested
roads in the Midwest and use my vehicle to run
them down.”
The DVD reportedly shows Hayn hitting
deer, mostly in Illinois on his commutes to a
job as an Illinois Department of Corrections
officer. Attorney Ed Fanning, representing
Hayn, told Robert Patrick of the St. Louis Post
Dispatch that the case cost Hayn the position.
Hayn could not be prosecuted for poaching
because the DVD does not identify exactly where
or when the deer were killed.
The Supreme Court in the Stevens decision
rejected the contention of the U.S. Department of
Justice, the Humane Society of the U.S., and
the American SPCA that the production,
distribution, and possession of images of
cruelty to animals should be prohibited under the
same narrow exceptions to the First Amendment
that were created to ban child pornography by the
1982 Supreme Court ruling in New York v. Ferber.
But the Supreme Court largely framed the
Stevens verdict as an affirmation of the need for
news media and animal advocates to be able to
expose cruelty to animals by making use of visual
images.
The Supreme Court reasoning paralleled an
amicus curiae brief submitted by the Reporters
Committee for Freedom of the Press and 13 other
news media organizations, whose arguments were
based primarily on uses of undercover video to
expose cruelty, including by Fund for Animals
founder Cleveland Amory in 1970, and by the
Humane Society of the U.S. in recent exposés of
slaughterhouse abuses. Altogether, the
Reporters Committee for Freedom of the Press
cited 27 examples involving collaborations among
news media and animal advocates which it
contended would have been criminalized if 18 USC
§ 48 had been enforced to the letter.

Hunting videos

Secondarily, the Reporters Committee for
Freedom of the Press cited the possibility that
18 USC § 48 might prohibit the use of video to
expose illegal or ethically questionable hunting,
fishing, and trapping.
The possible application of 18 USC § 48
to hunting videos was the focal concern of amicus
curiae briefs submitted by the National Rifle
Association and Safari Club International. The
NRA and Safari Club argued that 18 USC § 48
“would have imposed felony penalties for
creating, possessing or selling mainstream
hunting images,” summarized NRA Institute for
Legislative Action executive director Chris W.
Cox.
Said an NRA press release acclaiming the
Stevens verdict, “Before becoming president of
HSUS, Wayne Pacelle said, ‘The definition of
obscenity on the newsstands should be extended to
many hunting magazines.’ This is precisely what
the law did.”
Both the Supreme Court verdict and a
dissenting opinion by Justice Samuel Alito
appeared to find most relevant to the Stevens
case the examples of potential applications of 18
USC § 48 to hunting.
Held the verdict, “Limiting §48’s reach
to crush videos and depictions of animal fighting
or other extreme crueltyŠrequires an
unrealistically broad reading of the statute’s
exceptions clause. The statute only exempts
material with ‘serious’ value, and ‘serious’
must be taken seriously. The excepted speech
must also fall within one of §48(b)’s enumerated
categories. Much speech does not. For example,
most hunting depictions are not obviously
instructional in nature. The exceptions clause
simply has no adequate reading that results in
the statute’s banning only the depictions the
Government would like to ban.”

Ferber not precedent

Reminded the Supreme Court, “The First
Amendment provides that ‘Congress shall make no
law…abridging the freedom of speech.’ As a
general matter, the First Amendment means that
government has no power to restrict expression
because of message, ideas, subject matter, or
content.”
Ferber, the Supreme Court explained,
“presented a special case: The market for child
pornography was ‘intrinsically related’ to the
underlying abuse, and was therefore ‘an
integral part of the production of such
materials, an activity illegal throughout the
Nation.'”
The Ferber Court noted that the value of
child pornography “is exceedingly modest, if not
de minimis,” and that since the nature of child
pornography and the harm to children involved in
producing it are already well understood, there
is no need for examples of child pornography to
be published by news media or other participants
in public debate.
The Ferber argument fails as applied to
depictions of cruelty to animals, the Supreme
Court reasoned, in part because there is ongoing
societal debate about what acts constitute
cruelty to animals. Visual documentation of
various controversial acts, both illegal and
still legal, is involved in much of the
discussion as to what should be prohibited.
18 USC §48, said the Supreme Court,
“addresses only portrayals of harmful acts, not
the underlying conduct. It applies to any visual
or auditory depiction ‘in which a living animal
is intentionally maimed, mutilated, tortured,
wounded, or killed,’ if that conduct violates
federal or state law where ‘the creation, sale,
or possession takes place.’ Another clause
exempts depictions with ‘serious religious,
political, scientific, educational,
journalistic, historical, or artistic value,'”
but that very exemption, meant to preserve the
constitutionality of the statute, instead ran
afoul of previous Supreme Court verdicts.
“Since its enactment,” the Supreme Court
recounted, “the First Amendment has permitted
restrictions on a few historic categories of
speech–including obscenity, defamation, fraud,
incitement, and speech integral to criminal
conduct.” However, “While the prohibition of
animal cruelty has a long history in American
law,” the Supreme Court found, citing examples
dating to 1641, “there is no evidence of a
similar tradition prohibiting depictions of such
cruelty.”
Even if such a tradition existed, the
Supreme Court objected that “The statute’s
definition of a ‘depiction of animal cruelty’
does not even require that the depicted conduct
be cruel. While the words ‘maimed, mutilated,
[and] tortured’ convey cruelty, ‘wounded’ and
‘killed’ do notŠSection 48 does require that the
depicted conduct be ‘illegal,’ but many federal
and state laws concerning the proper treatment of
animals are not designed to guard against animal
cruelty. For example,” the Supreme Court said,
“endangered species protections restrict even the
humane wounding or killing of animals. The
statute draws no distinction based on the reason
the conduct is made illegalŠand includes, for
example, the humane slaughter of a stolen cow.”
The Supreme Court was further troubled
that 18 USC §48 “extends to conduct that is
illegal in only a single jurisdiction,” so that
“A depiction of entirely lawful conduct runs
afoul of the ban if that depiction later finds
its way into another state where the same conduct
is unlawful. This provision greatly expands the
scope of §48,” the Supreme Court majority held,
“because although there may be ‘a broad societal
consensus’ against cruelty to animals, there is
substantial disagreement on what types of conduct
are properly regarded as cruel. Both views about
cruelty to animals and regulations having no
connection to cruelty vary widely from place to
place.”

Alito’s dissent

Justice Samuel Alito in the lone
dissenting opinion wrote that his fellow Justices
had reviewed the wrong issue. “Instead of
applying the doctrine of overbreadth,” Alito
wrote, “I would vacate the [Stevens] decision
and instruct the Court of Appeals on remand to
decide whether the videos that respondent sold
are constitutionally protected.
“I would hold that §48 does not apply to
depictions of hunting,” Alito continued.
“First, because §48 targets depictions of
‘animal cruelty,’ I would interpret that term to
apply only to depictions involving acts of animal
cruelty as defined by applicable state or federal
law, not to depictions of acts that happen to be
illegal for reasons having nothing to do with the
prevention of animal cruelty.
Alito argued that the reasoning of the
Ferber verdict should apply in Stevens too,
since the crush videos share the characteristics
of child pornography cited by the Supreme Court
in the Ferber ruling. “The conduct depicted in
crush videos is criminal in every State and the
District of Columbia,” Alito noted. “Thus, any
crush video made in this country records the
actual commission of a criminal act that inflicts
severe physical injury and excruciating pain and
ultimately results in death. Those who record
the underlying criminal acts are likely to be
criminally culpable, either as aiders and
abettors or conspirators. And in the tight and
secretive market for these videos, some who sell
the videos or possess them with the intent to
make a profit may be similarly culpable.
“The criminal acts shown in crush videos
cannot be prevented without targeting the conduct
prohibited by §48–the creation, sale, and
possession for sale of depictions of animal
torture with the intention of realizing a
commercial profit,” Alito contended.
“The evidence presented to Congress posed
a stark choice: Either ban the commercial
exploitation of crush videos or tolerate a
continuation of the criminal acts that they
record,” Alito wrote. “Faced with this
evidence, Congress reasonably chose to target
the lucrative crush video market.”
Alito argued further that 18 USC §48
should apply to dogfighting as well as crush
videos. Repeatedly citing the HSUS amicus curiae
brief, Alito wrote that “because videos
depicting live dogfights are essential to the
success of the criminal dogfighting subculture,
the commercial sale of such videos helps to fuel
the market for, and thus to perpetuate the
perpetration of, the criminal conduct depicted
in them.”
Among the consequences of the Stevens
decision is that the Supreme Court in effect
legalized one of the most profitable aspects of
professional dogfighting, and made catching
dogfighters in the act more difficult. As U.S.
law now stands, participating in a dogfight is a
federal felony and a felony in 49 of the 50
states. Attending a dogfight is an offense in 48
states. However, the Stevens verdict means that
dogfights conducted outside the U.S. might be
telecast into the U.S. with impunity. U.S.-based
dogfighters, instead of charging admission and
collecting bets, at risk that a spectator or
bettor may be an undercover investigator, might
exclude everyone but themselves from a dogfight
and just distribute videos of the proceedings.

Source material

The major concern of the Reporters
Committee for Freedom of the Press, the commttee
brief explained, was the portion of 18 USC § 48
providing that anyone who knowingly possesses “a
depiction of animal cruelty with the intention of
placing that depiction in interstate or foreign
commerce for commercial gain” faced up to five
years in prison, unless the depiction itself had
‘serious’ value.
Explained the Reporters Committee,
“Reporters are in the business of intentionally
placing such depictions ‘in interstate or foreign
commerce for commercial gain.’ And even the
creation of indisputably ‘serious’ journalism
often will require the possession of source
materials that are not exempt as ‘serious’ works.
For example, an investigation of animal
fighting, or inhumane slaughtering.
“The same could be said,” the Reporters
Committee brief continued, “of animal rights
groups that possess graphic source material for
use in their work. The Humane Society of the
U.S. and People for the Ethical Treatment of
Animals operate YouTube channels that feature
explicit images of animal cruelty, often in
combination with fund-raising appeals.
Anti-dog-fighting campaigns even used portions of
Stevens’ videos in their work. If fundraising
were construed as use for ‘commercial gain,'” as
other court cases have at times held that it is,
even when funds raised are used for charitable
purposes, “their possession of source materials
could constitute a felony. Such possession and
use for the purposes of exposing acts of animal
cruelty should be encouraged, not criminalized.”

History of the law

Authored by Elton Gallegly
(R-California), 18 USC § 48 was introduced and
passed with unusual speed for a pro-animal bill,
receiving the support of many pro-hunting members
of Congress, and of President Bill Clinton, who
at the time was opening National Parks to hunting
at an unprecedented pace, preliminary to
then-Vice President Albert Gore running to
succeed Clinton.
The crush video traffic prompting the
Gallegly bill came to light when British Customs
in mid-1997 intercepted several videos mailed by
one “Jeff Vilencia” of “Squish Productions” in
California. British Customs took the videos to
Martin Daly of the Royal SPCA. Daly eventually
enlisted investigative help from Cassandra Brown
of the London Sunday Telegraph.
Unaware of that case, then-America
Online “Animals & Society” host Susan Roghair
independently discovered several web sites which
promoted and sold crush videos. Roghair in
October 1997 sought help in doing something about
the business from ANIMAL PEOPLE, PETA,
AnimalTalk host Dick Weevil, and Ohio animal
rights attorney Shawn Thomas, who turned out to
be pursuing a parallel investigation of his own,
after finding some of the same web sites.
Att Thomas’ request, ANIMAL PEOPLE in
October 1997 postponed publishing an article
about crush videos to avoid jeopardizing the
investigation. Cassandra Brown in November 1997
scooped ANIMAL PEOPLE. Learning thereby of the
British investigation, ANIMAL PEOPLE introduced
the British and American investigators.
Unknown to any other investigators, the
Suffolk County SPCA was separately closing in on
crush video producer Thomas Capriola, 30, of
Islip Terrace, Long Island. Two days after
Capriola was arrested in May 1998, ANIMAL PEOPLE
introduced the Suffolk County SPCA investigators
to Daly, Thomas, and Roghair.
18 USC § 48 was not used in winning any of the ensuing convictions.
Capriola in December 2000 pleaded guilty
to misdemeanor cruelty to animals and
fifth-degree possession of marijuana, and was
sentenced to serve 280 hours of community service
with three years on probation.
The original investigation brought the
August 1999 arrests and eventual plea bargain
convictions of “crush video” star Diane Aileen
Chaffin, 35, of La Puente, California, and
producer Gary Lynn Thomason, 48, of Anaheim.
Each drew a year in jail and three years on
probation.
Convicted in Britain were Craig Chapman,
27, Christine Besford, 26, Sarah Goode, 22,
and Tharaza Smallwood, 22. Chapman was in May
2002 sentenced to serve two years in jail. The
three women drew four months each. All four
defendants were also fined and banned for life
from keeping pets.
Yet another crush video case surfaced in
China in March 2006. China has only within the
past year published several variants of a draft
anti-cruelty law. Thus making and distributing
the crush video that was posted to the web in
China was not illegal. However, individual
Chinese citizens rapidly identified the “actress”
who stomped a kitten to death as hospital nurse
Wang Jue, of northern Heilongjiang province,
and posted her personal data, along with that of
the videographer.
Wang Jue lost her job. The producer,
identified as Luobei Television cameraman Li
Yuejun, wrote a published apology and
self-criticism. The state-run China Daily
editorially argued for the national cruelty law
that has finally begun to advance.
The Stevens case, leading to the U.S.
Supreme Court verdict, originated when Stevens
advertised his videos in the Sporting Dog
Journal. Sporting Dog Journal publisher James
Fricchione was convicted in March 2004 of six
felonies and five misdemeanors for allegedly
promoting dogfights.
Only days after the Supreme Court struck
down Stevens’ conviction and 18 USC § 48,
Representive Gallegly and more than 50 cosponsors
introduced HR 5092, seeking to restore the
intent of 18 USC § 48 in terms that will be
constitutional.