THE NEW YORK TIMES
WASHINGTON — The next great First Amendment battle in the Supreme Court concerns, of all things, dogfight videos.
Robert J. Stevens, in “Pick-a-Winna.” He was sentenced under a law that bans trafficking in depictions of animal cruelty.
“For centuries,” Mr. Stevens exclaimed on one videotape, “the American pit bull terrier has reigned supreme as the gladiator of the pit!”
Mr. Stevens, 69, had nothing to do with the dogfights themselves. But he did compile and sell tapes showing them, and that was enough to earn him a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”
The Supreme Court will hear his case, which has divided animal rights groups and free-speech advocates, on Oct. 6. The central issue is whether the court should for the first time in a generation designate a category of expression as so vile that it deserves no protection under the First Amendment. The last time the court did that was in 1982; the subject was child pornography.
Dogfighting and other forms of cruelty to animals are illegal in all 50 states. The 1999 law was aimed solely at depictions of such conduct. A federal appeals court last year struck down the law on First Amendment grounds and overturned Mr. Stevens’s conviction.
The law has an odd history. It was enacted in large part to address what a House report called “a very specific sexual fetish.” There are people, it seems, who enjoy watching videos of small animals being crushed.
“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”
But the Justice Department in the Bush administration pursued at least three prosecutions for the sale of dogfighting videos.
There is little dispute that crush videos are profoundly disturbing. The two dogfighting videos Mr. Stevens was prosecuted for selling present a harder question.
There was conflicting testimony at Mr. Stevens’s trial about the nature and social worth of the videos. Defense experts said the films had educational and historical value, noting that much of the footage came from Japan, where dogfighting is legal. A veterinarian who testified for the prosecution disputed that and said the videos depicted terrible suffering, including scenes of dogs that were “bitten, ripped and torn” and “screaming in pain.”
There is certainly biting in the dogfighting videos, but the fights are not bloody. In their Supreme Court brief, Mr. Stevens’s lawyers denied that any of the dogs in the videos were “ripped and torn,” and they counted “at most, 25 seconds containing yelps” in the more than two hours of footage on the tapes.
The third video at issue in the case, “Catch Dogs and Country Living,” shows pit bulls being trained to attack hogs and then hunting wild boar. The encounters are gory and brutal. Mr. Stevens participated in the hunting and filmed parts of the third video, which bears some resemblance to nature documentaries.
The law applies to audio and video recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” It does not matter whether the conduct was legal when and where it occurred so long as it would have been illegal where the recording was sold.
That means it may be a crime for an American to sell a video of a bullfight that took place in Spain, where bullfighting is legal. And because all hunting is illegal in Washington, a literal reading of the statute would make the sale of hunting videos illegal here. The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.”
That exception may well protect journalism, scholarship and animal rights advocacy about subjects like factory farming, pharmaceutical testing, circuses and the slaughter of baby seals. But the determination of whether particular materials have “serious value” is, in the first instance at least, made by prosecutors.
News organizations, including The New York Times, filed a brief supporting Mr. Stevens. The 1999 law, the brief said, “imperils the media’s ability to report on issues related to animals.”
In a brief supporting the government, the Humane Society of the United States said that “gruesome depictions of animal mutilation targeted” by the law “simply do not merit the dignity of full First Amendment protection.”
When federal agents raided Mr. Stevens’s home in rural Virginia in 2003, he had no idea, his lawyers and family say, that he was breaking the law.
But there are hints in the videotapes that Mr. Stevens at least knew that people participating in dogfighting in the United States were doing something illegal.
“Because I’m not going to show any participants or spectators, I have to cut a lot of it,” Mr. Stevens, who has a folksy manner and looks a little like the actor Bill Murray, said on one of the videos. “I only show certain action clips I think you’ll enjoy.” Mr. Stevens did not try to hide the identities of those involved in the Japanese dogfights or in the video of dogs attacking hogs.
There is a crucial difference, Mr. Stevens’s lawyers told the Supreme Court, between illegal conduct and depictions of that conduct.
“While acts of animal cruelty have long been outlawed,” the brief for Mr. Stevens said, “there have never been any laws against speech depicting the killing or wounding of animals from the time of the First Amendment’s adoption through the intervening two centuries.”
State and local governments occasionally try to ban depictions of violence against people, notably in videogames. But those laws are routinely struck down, and the Supreme Court has never ruled that speech about nonsexual violence is beyond the protection of the First Amendment.
Mr. Stevens’s sentence was 14 months longer, the brief noted, than that of Michael Vick, the football star who actually participated in a dogfighting venture.
Through his lawyers, Mr. Stevens declined to be interviewed. He has said he never had his own dogs participate in dogfights.
Mr. Stevens’s son, Michael, said his father was guilty of nothing more than a longtime fascination with the affection, loyalty and passion of pit bulls. “You couldn’t treat a dog any better,” the younger Mr. Stevens said, “than my father treats pit bull dogs.”