Robert Stevens owned and ran a business called “Dogs of Velvet and Steel,” selling graphic videos depicting pit bulls participating in dog fighting or attacking other animals. Two of these videos were “Japan Pit Fights” and “Pick-a-Winna: A Pit Bull Documentary,” with 1960s and 1970s footage of American dog fights, along with contemporary dog fights in Japan, where dog fighting is supposedly legal. A third video, “Catch Dogs and Country Living,” shows pit bulls hunting wild boar, and has a scene in which a pit bull gruesomely attacks a domestic farm pig.
Stevens was charged with violations of 18 U.S.C. §48, which made it a crime punishable by up to five years in prison if someone knowingly “creates, sells, or possesses a depiction of animal cruelty,” if done “for commercial gain” in interstate or foreign commerce. A depiction of animal cruelty under Section 48 was one “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place.” Section 48 had built-in exceptions for any depiction “that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Section 48 was designed primarily to target crush videos, which show horrendous acts of animal cruelty that are punishable as a crime in all fifty states and the District of Columbia. Congress felt the need to enact Section 48 to combat the fact that law enforcement typically cannot identity of the participants in crush videos, which may only show the person’s leg or foot. Like animal cruelty, dog fighting is illegal in all fifty states and the District of Columbia, and has been regulated federally since 1976.
In the Stevens opinion, the Court first looked at what kinds of “speech” are so unworthy of protection that they fall completely outside of the First Amendment, such as child pornography. The Government argued that depictions of animal cruelty should be carved out of First Amendment protection just like child pornography, but the eight Justices in the majority (sans Justice Alito, the lone brave dissenter) did not buy it.
Next, the Court looked at Stevens’ challenge to Section 48 “on its face,” arguing that Section 48 was so overbroad that it captured too many lawful acts its sweep. The Court was deeply disturbed by the fact that the terms “wounded” and “killed” in the definition of a depiction of animal cruelty presumably had no requirement that the underlying acts be “cruel,” capturing videos about livestock and hunting in Section 48’s sweep. Section 48’s exceptions did not give the Justices enough comfort that livestock and hunting videos would escape prosecution.
The Court struck down Section 48 and relieved Stevens of his conviction and well-deserved thirty-seven month sentence. However, at the end of the opinion, the Court limited its decision to its finding that Section 48 was overbroad. This left the window open for the possibility that a more narrow statute would be upheld as constitutional. For a wonderful analysis of what the Court did and did not do in Stevens, be sure to catch Matthew Liebman’s post on the Animal Legal Defense Fund Blog, Clarifying the Supreme Court’s United States v. Stevens Opinion. In that post, Liebman found the silver lining of the Stevens opinion to be the potential that the Justices would uphold a statute specifically tailored to crush videos and dog fighting.
Stevens was decided on April 20, 2010. In the days that followed, organizations like the Animal Legal Defense Fund and the Humane Society urged Congress to pass a new statute that could overcome the issues raised by the Court in Stevens. Fortunately, Congress responded swiftly.
On June 22, 2010, the House of Representatives introduced H.R. 5566, which specifically targeted animal crush videos and depictions of animal cruelty, and specifically excluded videos depicting hunting, trapping, fishing, and veterinary or animal husbandry practices. On July 21, 2010, Democrats and Republicans came together to pass H.R. 5566 by a vote of 416-3. The 3 nay-sayers were Paul Broun and Tom Graves from Georgia, and Ron Paul of Texas.
On September 28, 2010, the Senate responded by passing H.R. 5566 EAS (“Engrossed Amendment Senate”), targeting the “extreme animal cruelty” depicted in crush videos. The new statute seems plenty narrow to withstand constitutional attack. My fear is that it is too narrow, arguably allowing dog fighting videos – the very situation raised in Stevens – to squeak by unprosecuted. The bill now goes back to the House to resolve the differences between H.R. 5566 and H.R. 5566 EAS.
UPDATE: Please take a look at Steve Dale’s recent post on the Facebook Legalizing Dog Fighting page. Their message? “Legalize dog fighting. Pets are not people. They are your pet. something you own. If i’m not mistaken when you own something you can do what you want with it.” Seems they need to read up on the animal cruelty and animal neglect laws in all fifty states and the District of Columbia. Steve Dale describes how to help shut down the page for its blatant promotion of illegality and violence. Please take the time to do so.
UPDATE #2 (10/17/2010): Facebook took down the Legalizing Dog Fighting page, only to have the group put up a new one. Please take a moment to go to Steve Dale’s new blog post and report this page, too.
UPDATE #3 (10/18/2010): The second page is also down!
UPDATE #4 (10/18/2010): There is a third page up. How is this for their new message: “Dog fighting is good clean fun and a great activity to bring families together for an evening of entertainment. The best part is there is an abundant supply of FREE pit bulls available through your local shelter and craigslist.” Please take time to report this page.
UPDATE #5 (10/19/2010): And the third page is down now.
Companion Animal Law Blog 
