Today’s news comes from contributor Dan Mims, who covers a very disturbing case involving animal cruelty that reached as high as the Supreme Court. We welcome Dan, quite a Discerning Brute, as a new contributor!
by contributor Dan Mims
The animal welfare blogosphere has been buzzing about Tuesday’s Supreme Court decision in United States v. Stevens, decided 8-1 for Stevens. The emerging consensus, following arguments and counter-arguments about the import and merit of the decision, seems to be that the Supreme Court made the right choice, both legally and for the benefit of the animal welfare movement.
Sadly, this couldn’t be further from the truth.
First, some background. “Stevens” is Robert Stevens, a purveyor of an animal fighting video who was prosecuted in 2004 under a federal statue passed in 1999. The law — officially known as Law 18 USC § 48 — prohibited creating, selling, or possessing videos/photographs of tortured animals for commercial purposes. The law, though potentially applicable to depictions of many kinds of animal torture, was passed in large part to discourage so-called “crush videos” — fetish videos depicting animals being crushed to death. One video in particular examined by Congress at that time is described by the following (WARNING: GRAPHIC LANGUAGE):
A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.
There are no words that can adequately describe such an act. That said, we must bear in mind that the Supreme Court’s role is to decide whether or not laws are constitutional — and not to be an arbiter of morality. In this capacity, the Court struck down Law 18 USC § 48 because they found it to be written over-broadly such that it might infringe upon other constitutionally protected forms of speech.
Some animal welfare advocates have cheered this decision on the basis that robust free speech is essential to our movement. Normally I might agree, depending on the trade-off. But here’s the rub: the challenged law was actually quite careful to confine its scope to commercial activities, and not to speech. For example, under the law, Stevens was still perfectly within his rights to advocate for animal fighting, or to advocate for his right to sell related videos. He could even create, distribute, or possess such videos, as long as he had no intent to commercially gain from those activities.
Congress has considerably greater leeway in limiting commerce than it does in limiting speech. Had the Court recognized commerce as the pivotal issue, I have no doubt the law would still stand. Instead, incomprehensibly, the Court ignored the law’s actual language and focused on speech. 
Why does this matter? For one thing, when the Court struck down Law 18 USC § 48 on the basis of speech concerns, it may have set a devastating precedent by which commercial activity that exploits animals is protected under the 1st Amendment. At least, those who would benefit from such an interpretation can now make that case.
That’s the big picture. The day-to-day effect of this ruling is that the market for violence-porn starring animals is once again open.
A silver lining is that the sponsor of the original law, Elton Gallegly (R-CA), is set to introduce a replacement bill <http://blogs.wsj.com/law/2010/04/20/legislative-branch-responds-after-supremes-animal-ruling/> that purportedly skirts the Supreme Court’s objections to the original. However, the language of the new law will be confined to “crush videos” only. Depraved individuals like Robert Stevens will still be free to sell their vile wares, encouraging further abuses while enriching themselves.
The animal welfare movement ignores all of these ramifications at its own peril — and, more importantly, at the animals’. HSUS’s Wayne Pacelle, for one, seems to grasp <http://hsus.typepad.com/wayne/2010/04/supreme-court.html> the importance of this decision. Here’s hoping his legal team can write several abuse-specific laws to lobby throughout Congress that will approximate the former scope of Law 18 USC § 48.
