Justice Scalia a Bullfighter? Supreme Court Explores Animal Cruelty

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Newsweek

By Krista Gesaman

In a showdown between animal-rights activists and First Amendment experts, it appears the right to free speech might have an edge. Earlier today, the U.S. Supreme Court heard oral arguments in U.S. v. Stevens, the controversial case that will determine whether to revive a 10-year-old law that makes it a crime to create, sell, or possess depictions of animal cruelty for commercial gain. The law was intended to prohibit the sale of disturbing sexual fetish videos, called “crush videos,” which pictured women in bare feet or high heels crushing small animals. But if struck down, it has the potential to also prohibit many other types of expression.

Animal lovers lined up on the Supreme Court steps earlier today hours before the hearing to champion the plight of their four-legged friends—and just as many free-speech advocates showed up to oppose. Among those in the crowd were contemporary artists, concerned that modern paintings of fox hunting or dead animals would violate the law. Others were worried their favorite animal-rescue shows or hunting programs would soon be taken off the air.

But the arguments were just as passionate in favor of animal rights. Members of the Humane Society were convinced the law was narrowly tailored to prosecute only those engaged in acts of animal cruelty. “The law works perfectly when it dries up the market for illegal behavior,” Wayne Pacelle, president and CEO of the Humane Society of the United States said in a press conference after the hearing. “There is nothing more offensive and barbaric than crush videos.” Neal Katyal, deputy solicitor general who argued on behalf of the United States, agreed in his arguments, pointing out that in the late 1990s, between 2,000 and 3,000 crush videos were sold, and the law was able to almost completely halt sales.

Several justices asked pointed questions about the structure of the law and its exceptions. “So when exactly does cockfighting or dog fighting become illegal?” Justice Ruth Bader Ginsburg asked. The law allows depictions of animal cruelty that have serious religious, political, scientific, educational, journalistic, historical, or artistic value. But it’s difficult to distinguish what images fall under these exceptions, and what images would cross the line. Basically, it's a subjective test that fall into the lap of judges and juries across the nation.

The court erupted with laughter when Justice Antonin Scalia posed a playful hypothetical. “What if I’m an aficionado of bullfighting who wants to promote his passion about the noble fight of man versus beast by selling videos,” Scalia said. Under the current law, he may not have the opportunity because it could be classified as a depiction of animal cruelty. Katyal said that wouldn’t happen because when Congress drafted the law it intended to exempt images of bullfighting that are educational. But how and when is something deemed educational? “If I dress up like a Roman to promote my videos, does the whole thing fall under the historical exception?” Scalia jokingly asked. People enjoy programs like bullfighting or hunting shows for their entertainment value, not for religious or educational reasons, he added.

Chief Justice John Roberts said the law could essentially hurt many of the animal-advocacy groups who support it. Organizations like PETA use depictions of animal cruelty to support its animal-rights efforts. Under the law, when exactly are they able to use these depictions? When will the images fall under one of the exceptions?

Later on, Justice Stephen Breyer began to muse, perhaps foreshadowing his decision. “I guess we should ask Congress to write a statute that actually means what it wants,” Breyer said. If the law is intended to eliminate crush videos, make sure it eliminates only crush videos, he added. In other words, if the Supreme Court affirms the lower court’s decision, Congress might be forced to edit the current law to prohibit things like “crush videos” while still allowing other forms of free speech.

Tag(s): Antonin Scalia, Ruth Bader Ginsberg, Humane Society

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Member Comments

Posted By: Dredd (October 7, 2009 at 9:17 AM)

What goes around comes around. This is more serious than the Justices seemed to grasp.

It is a microcosm for what humanity is doing to the earth.

http://ecocosmology.blogspot.com/2009/10/wanted-technology-to-save-our-species.html

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