Academic

First Amendment Challenge Tests Animal Cruelty Law

By firstamendmentblogger

Earlier this week the US Supreme Court granted cert in US v. Stevens, to decide whether depictions of animal cruelty merit constitutional protection. 

The statute, 18 U.S.C. § 48, makes it a crime to create, possess or sell images of animal cruelty, which is defined to include live animals being maimed, injured, tortured or killed if the conduct itself is illegal in the relevant jurisdiction.  The law was originally intended to curb the market in "crush videos" -  those  artistic gems that portray a stiletto clad dominatrix threatening to impale a kitten with her heel.  It's rumored the videos that hit the market in the 1990s didn't actually show the gruesome detail on film, though the squeals and cries of the animals could be heard off camera. 

So far, though, reports say there have been only 3 other                                  prosecutions under the statute, each involving dog fights, as was the case here.  It seems then, that the government is pressing the Court to uphold a statute it's not really looking to enforce.  Moreover, the statute itself includes an exception wide enough to run a horse through (ooh, sorry).  A depiction of cruelty is not prohibited if it "has serious religious, political, scientific, educational, journalistic, historical, or artistic value."  No doubt the government was trying to preserve the constitutionality of the statute since this exception loosely tracks the standard for judging whether sexualized material is constitutionally protected or is obscene.  But the exception in the obscenity context is precisely why so many of those prosecutions fail.     

Those are my baby girls Kenya and Brutus up on the left.  They get organic kibble, wheat-free snacks, and osmosis purified de-ionized water from Whole Foods.  They've gotten accupuncture.  They have a standing reservation at 'doggy day-care' every Friday, sometimes with a sleep-over and oatmeal bath.  And yes, every other night, they sleep in our bed.  That's Mousetrap on the right.  We got her from the auto-shop guy who found her in the alley.  She's in the bed too. 

The point is, I would have voted for this law in a heartbeat and think the First Amendment challenge could be overcome.  I'm just not sure it matters that much if we're looking at four prosecutions a decade.   

-Kathleen A. Bergin

Full post as published by The Faculty Lounge on April 24, 2009 (boomark / email).