Supreme Court voids law on animal cruelty videos

Justices conclude 1999 law intended to ban Web videos of small animals being crushed is "overbroad" and would ban mainstream hunting programs too.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

A Web site promoting graphic videos of pit bulls fighting in Japan and hunting wild boar is shielded by the free speech guarantees of the First Amendment, the U.S. Supreme Court ruled on Tuesday.

In a strongly worded 8-1 opinion, the court tossed out the criminal conviction of Robert Stevens, a documentary filmmaker in rural Virginia who sold books, videos, and equipment related to raising pit bulls through the now-defunct Pitbulllife.com site.

A 1999 federal law that Stevens was prosecuted under is "substantially overbroad, and therefore invalid under the First Amendment," Chief Justice John Roberts wrote in the majority opinion.

Over a decade ago, when the law was being debated, members of Congress claimed that the rise of Internet video-sharing made it necessary to slap criminal penalties on visual depictions of animal torture, wounding, or killing. All 50 states and the District of Columbia had already prohibited animal mistreatment, but not photographs or videos of the act.

Robert Stevens, whose criminal conviction was tossed by the Supreme Cout Tuesday, was not accused of engaging in dogfighting--which is illegal--but rather selling items that might be of interest to those who are. This book is still for sale on Amazon. Amazon.com

"The materials were commonly available through the Internet," a House of Representatives committee concluded in a report. "Many Internet sites were blatant in offering to sell these depictions, and some even advertised to make such depictions to order, in whatever manner the customer wished to see the animal tortured and killed."

What are known as "crush videos," depicting small animals being crushed to death, sometimes with erotic overtones, was a primary target of the law. (One film, "Smush," depicts an actress mincing earthworms with her heels.)

The Obama administration had defended the law by arguing that it was necessary to stop the spread of crush videos online. "Several Web sites are specifically dedicated to crush fetishes, and crush videos are available for purchase from numerous sources on the Internet," the Justice Department wrote in its brief. "Crush videos make up a significant part of the depraved depictions of animal cruelty."

There was one hitch, however: the actual text of the law signed by President Clinton banned more than Internet crush videos. It also outlawed photos and videos of an animal being "wounded" or "killed" if those depictions lacked serious value--and did not exempt hunting or require that there was evidence of cruelty.

That wording imperils mainstream hunting videos in violation of the First Amendment, the Supreme Court said: "There is an enormous national market for hunting-related depictions in which a living animal is intentionally killed. Hunting periodicals have circulations in the hundreds of thousands or millions, and hunting television programs, videos, and Web sites are equally popular."

Clinton had promised, in a December 1999 signing statement, that prosecutors would use the law only to target defendants engaged in "wanton cruelty to animals designed to appeal to a prurient interest in sex."

But the defendant in this case, Stevens, sells obedience videos for pet owners and says he does not condone dog fighting in any way. He is not accused of engaging in dogfighting--which is illegal--but rather selling items that might be of interest to those who are.

On Tuesday, the Supreme Court stressed that the lack of any sexual overtones to Stevens' videos is "evidence of the danger in putting faith in government representations of prosecutorial restraint."

The majority opinion did, however, leave open the possibility that a narrower law targeting only crush videos and depictions of "extreme animal cruelty" could be constitutional. The Humane Society of the United States said afterward that it would prod Congress to enact a law more focused on Internet videos.

Justice Samuel Alito dissented, saying the law was not overly broad because in practice, only a small number of hunting-related videos would be targeted.