1-6-09

Adam Liptak in today’s New York Times wrote a measured piece about the legal brouhaha over a 1999 law that The HSUS and the Doris Day Animal League helped to pass to ban the commercial sale of videos depicting extreme and illegal acts of animal cruelty. The legislation—carried with great skill by Congressman Elton Gallegly, a stalwart friend to our cause—was prompted by an HSUS investigation that uncovered an underground subculture of “animal crush” videos, where women, often in high-heeled shoes, would impale and crush to death puppies, kittens and other small animals, catering to those with a fetish for this aberrant behavior. Surprisingly, we found thousands of separately produced videos available for sale on the Internet—causing untold suffering to thousands of animals.

Liptak notes that the Bush Administration’s Solicitor General has filed a petition for certiorari, requesting review by the U.S. Supreme Court of an appellate court’s ruling that the Cruelty Depictions Law is unconstitutional. The appeals court ruled that animal cruelty is “not a compelling state interest” and nullified the law because, according to the court, it proscribes protected speech.

The Solicitor General noted in his brief that First Amendment jurisprudence makes it plain that free speech guarantees are not absolute. The Supreme Court explained in Chaplinsky v. New Hampshire (1942) that “certain well-defined and narrowly limited classes of speech” do not contribute to an “essential part of any exposition of ideas, and are of such slight social value” that government may proscribe their content. The Solicitor also explained how, so far, the Court has recognized that fighting words (speech inciting imminent lawless activity), Brandenburg v. Ohio (1969); defamation, Beauharnais v. Illinois (1952); obscenity, Miller v. California (1973); child pornography, Ferber (1982); and solicitations to engage in illegal activity, United States v. Williams (2008), all are so far from the concerns actually animating the First Amendment that they are entitled to no Constitutional protection.

While we are staunch believers in the First Amendment here at The HSUS, we balk at the absolutism of some self-proclaimed First Amendment advocates. Some have claimed that there is a First Amendment right to advertise illegal dogfights and cockfights, and we think the law is clear that such promotions may constitutionally be criminalized. When it comes to video of illegal acts of animal torture that are inflicted solely for the purpose of selling the videos for profit, we also stand on firm terrain. Stopping animal cruelty is a compelling state interest—not only because our society values animals and their well-being, but also because people who perpetrate these acts of cruelty are often involved in other criminal behavior, including violence against people. What’s more, the peddlers of these animal snuff films are not making an argument or expressing a viewpoint—they are simply profiting from appalling animal cruelty. If the core behavior is criminal, so should the commercial profit of the sale of the videotaped torment of the victims.

It’s quite difficult to catch dogfighters in the act, though we are getting better at sniffing out these criminals all the time. But if we can’t catch them in the act, must we stand aside as they stage dogfights for the purpose of selling thousands of videos for profit to titillate viewers with an interest in this despicable behavior? And must we allow them to victimize more dogs while they create the newest DVDs depicting their perverse and illegal form of recreation? We won’t stand by, and that’s why we lobbied for enactment of the law.

And when it comes to women stepping on animals for the sexual gratification of viewers, that, too, crosses any standard of decency and humanity, and here the law must speak. There is no speech present in these films, just torture. We wouldn’t allow people to sell videos of people actually abusing children or raping women, and the same legal principles are at hand with malicious acts of cruelty, which are a felony in some form in every state. The federal Cruelty Depictions Law is an essential complement to the state anti-cruelty and anti-animal fighting laws, which alone do not equip law enforcement with the tools to stamp out the national and international traffic in the videos, which are anonymously produced and staged for the sole purpose of inflicting cruelty to animals.

Our thanks to the Solicitor General for appealing the case, and our thanks to Congress for its overwhelming passage (unanimous in the Senate) of this law nearly a decade ago. The HSUS will muster all of its legal and political resources to argue for a reversal of the appellate court’s ruling if the Supreme Court grants review. Until the appellate court’s ill-considered opinion is remedied, I am afraid we will see more miscreants victimizing more animals. These people should find no defense in the First Amendment, especially in the era of commercial trade on the Internet.

Wayne Pacelle
President/CEO
The Humane Society of the United States