On Animal Cruelty and Free Speech

Jules Witcover

Sometimes, though rarely, a Supreme Court ruling is so startling and jarring that Congress is moved swiftly to counter it. That may, and certainly should, be the response to the court's decision declaring unconstitutional a 1999 federal law against creation and distribution of material depicting acts of animal cruelty.

By an unusual and rather remarkable 8-1 vote, with Justice Samuel Alito, a member of the conservative bloc, the only dissenter, the Court held that the law was so broad that it violated the free speech protection under the First Amendment.

It was the second time in recent months that the Court had cited free speech rights to reject federal law. Earlier it had thrown out the McCain-Feingold campaign finance limits on corporate and union contributions on the same general grounds, but in that case in a liberal-conservative split vote.

In this second case, the eight assenting justices brushed aside the blatantly cruel depictions of pit-bull fighting by a Virginia documentary-maker named Robert Stevens who sold such videos to undercover agents and was sentenced to three years in prison.

The law originally was aimed at makers and distributors of so-called "crush videos," showing women in stiletto-heeled shoes stomping on cats, mice and other small animals and rodents, maiming or killing them, or burning them with lit cigarettes.

Roberts in his opinion took the Obama administration to task for placing "relative social cost and benefit" above the constitutional guarantee of free speech, calling that view itself "startling and dangerous." President Bill Clinton, in signing the law, had said it would be applied only against depictions of "wanton cruelty to animals designed to appeal to a prurient interest in sex."

But Roberts wrote that "no one suggests that the videos in this case fit that description," and that depictions of animal cruelty "historically" had never been denied free-speech protection as, for example, child pornography was by the Court in 1982. Alito argued that the law in question should be applicable to bar "crush videos and dog fighting videos."

Roberts in oral argument suggested hypothetically, and ludicrously, that such videos could be used as political statements. "How can you tell these weren't political videos trying to fight animal cruelty?" he asked. Alito countered with obvious sarcasm: "What about people who like to see human sacrifice?" He said the court's decision could well result in a flood of new crush videos with the practical effect of legalizing their sale.

A lawyer for Stevens argued that there were other ways under the Constitution to deal with unwanted animal cruelty. It is a view joined by the American Civil Liberties Union and a range of major American newspapers.

Acting on the decision, Republican Rep. Elton Gallegly of California announced at once that he was introducing legislation focused directly and narrowly against creation and depiction of crush videos, and other congressmen of both parties indicated they would join the effort.

Wayne Pacelle, president of the Humane Society of the United States, the nation's largest animal-protection organization, criticized the court's decision as getting itself tied up in hypothetical legal argument and ignoring the practical ramifications of the case.

He noted that after Clinton signed the bill in question, the crush-video phenomenon "disappeared." In 26 states, he said attorneys general supported the campaign against animal-cruelty videos, as did the American Society to Prevent Cruelty to Animals.

It remains to be seen now how quickly Congress, which overwhelmingly passed the original law now struck down by the court, will craft and vote on new legislation that again confronts such vicious and inhumane brutality toward animals of all kinds.

The same legal protection afforded victims of child pornography is warranted for them, and willing legislators and their lawyers should waste no time finding the language that will satisfy the most steadfast defenders of free speech.

This is not simply a case of flag burning, which, no matter how reprehensible, does not involve the inflicting of corporal punishment or the taking of lives. All members of Congress should see some of these videos, which are available now on Internet sites, to help them make up their minds.

Available at Amazon.com:

Willful Neglect: The Dangerous Illusion of Homeland Security

The Reluctant Spy: My Secret Life in the CIA's War on Terror

The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House

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United States - On Animal Cruelty and Free Speech | Mortimer B. Zuckerman