A federal law that criminalizes the sale of depictions of animal cruelty has been struck down as unconstitutional by an en banc panel of the 3rd U.S. Circuit Court of Appeals in a decision that overturned the conviction of a man who sold videos of dog fights -- the first prosecution in the nation under the 1999 law.
But three dissenting judges said they believed the law was valid because the government has a "compelling interest in protecting animals from wanton acts of cruelty" and that the images prohibited under the law have "such minimal social value" that they don't deserve protection under the First Amendment.
Writing for the 10-judge majority, 3rd Circuit Judge D. Brooks Smith rejected the government's argument that depictions of animal cruelty should be compared to child pornography, which is not protected under the First Amendment.
"Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm," Smith wrote in the 79-page opinion in United States v. Stevens.
Smith found that the U.S. Supreme Court "has not recognized a new category of speech that is unprotected by the First Amendment in over 25 years," and that the government failed to show why depictions of animal cruelty should qualify as another new category of unprotected speech.
In addition to child pornography, Smith said, the only categories of speech that have been deemed by the U.S. Supreme Court to be unprotected are fighting words; threats; speech that imminently incites illegal activity; and obscenity.
"The common theme among these cases is that the speech at issue constitutes a grave threat to human beings or, in the case of obscenity, appeals to the prurient interest," Smith wrote.
Smith said he disagreed with the government's argument that depictions of animal cruelty "can appropriately be added to the extremely narrow class of speech that is unprotected."
Instead, Smith concluded that the government had shown no "compelling interest" in prohibiting such speech -- since every state already criminalizes acts of animal cruelty -- and that the law failed to pass a "strict scrutiny" test because it was not narrowly tailored.
Smith's opinion was joined by 3rd Circuit Chief Judge Anthony J. Scirica and Judges Dolores K. Sloviter, Theodore A. McKee Jr., Marjorie O. Rendell, Maryanne Trump Barry, Thomas L. Ambro, Michael A. Chagares, Kent A. Jordan and Thomas M. Hardiman.
The dissenting opinion was authored by Senior Judge Robert E. Cowen and joined by Judges Julio M. Fuentes and D. Michael Fisher.
The ruling overturns the conviction of Robert J. Stevens, of Pittsville, Va., who was convicted by a federal jury in Pittsburgh in January 2005 of three counts of selling videos that depicted animal cruelty and was sentenced to 37 months in prison.
Stevens was prosecuted under a law enacted in 1999 that was designed to target the sale of so called "crush" videos, which depict women in high heels crushing small animals and are sold to fetishists.
According to court papers, Stevens advertised pit bull-related videos in Sporting Dog Journal, an underground publication featuring articles on illegal dogfighting. Undercover agents purchased three of the videos and found vintage footage of organized dog fights in the United States from the 1960s and '70s, as well as more recent footage of dog fights in Japan.
The third video included footage of hunting excursions in which pit bulls were used to "catch" wild boar and "a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig," according to the opinion.
The footage in all three videos was accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature authored by Stevens.
U.S. District Judge Alan N. Block of the Western District of Pennsylvania refused to dismiss the indictment and sentenced Stevens to 37 months in prison after he was convicted by a jury.
On appeal, Assistant Federal Defender Karen S. Gerlach urged the 3rd Circuit to overturn the conviction on First Amendment grounds, arguing that Stevens "had nothing to do with animal cruelty," and that there was no evidence he had ever harmed an animal or even encouraged such conduct.
Assistant U.S. Attorney Robert Eberhardt urged the appellate court to uphold the statute, arguing that it was designed to punish those who profit from the commercial sale of depictions of animal cruelty.
The case was initially argued in October 2006 before a three-judge panel consisting of Judges Smith, Fisher and Cowen.
But the court never released the opinion of the three-judge panel. Instead, court records show that the 3rd Circuit voted internally in May 2007 to have the case reargued en banc.
Cowen had apparently written a majority opinion that was joined by Fisher, with a dissenting opinion by Smith. But Smith's dissent apparently compelled his colleagues to put a hold on the case, so that Cowen's majority opinion never saw the light of day.
Now the roles have been reversed, with Smith writing the majority decision and Cowen writing in dissent, joined by Fisher and only one more judge from the 13-member panel, Julio M. Fuentes.
Smith found that the statute failed the first test in a constitutionality analysis because the government was unable to show any compelling interest.
"No matter how appealing the cause of animal protection is to our sensibilities, we hesitate -- in the First Amendment context -- to elevate it to the status of a compelling interest," Smith wrote.
"While the Supreme Court has not always been crystal clear as to what constitutes a compelling interest in free speech cases, it rarely finds such an interest for content-based restrictions. When it has done so, the interest has -- without exception -- related to the well-being of human beings, not animals," Smith wrote.
Smith rejected the government's argument that depictions of animal cruelty are legally analogous to child pornography, finding that the comparison was flawed for several reasons.
"While animals are sentient creatures worthy of human kindness and human care, one cannot seriously contend that the animals themselves suffer continuing harm by having their images out in the marketplace," Smith wrote.
"Where children can be harmed simply by knowing that their images are available or by seeing the images themselves, animals are not capable of such awareness," Smith wrote.
By contrast, Smith said, when an animal suffers an act of cruelty, "the fact that the act of cruelty was captured on film in no way exacerbates or prolongs the harm suffered by that animal."
The law was also too broadly written, Smith found, and could potentially criminalize a video taken by a hunter or fisher that is later sold in interstate commerce.
In dissent, Cowen complained that the majority had afforded constitutional protection to "depictions of these senseless acts of animal cruelty."
"We have before us, not a statute broadly purporting to ban all depictions of criminal acts, but merely one prohibiting depictions of a narrow subclass of depraved acts committed against an uniquely vulnerable and helpless class of victims," Cowen wrote.
Cowen said he would hold that the government had shown a truly compelling interest "in light of the overwhelming body of law across the nation aimed at eradicating animal abuse."
Laws prohibiting cruelty to animals "have existed in this country since 1641," Cowen found, noting that the first modern animal cruelty law was enacted in New York in 1828, and that, by 1913 "every state had such a law."
The U.S. Supreme Court, Cowen said, "often cites to the prevalence of nationwide legislation on a matter as support for its conclusion that the asserted interest is sufficiently important as to be deemed compelling."
Cowen said he believed the statute should survive constitutional scrutiny because a depiction of animal cruelty is "of such minimal socially redeeming value that its restriction may be affected consistent with the First Amendment."