"May You Never See Them"

“May you never see them,” was the closing statement of New York Times Supreme Court correspondent Adam Liptik's article discussing the U.S. Court of Appeals for the Third Circuit reversal of Robert J. Stevens conviction.

Stevens was prosecuted for compiling footage of dog fights into DVDs for sale. Some of the footage was older, shot in Japan (where dog fighting is legal), not filmed by Stevens, and he was supposedly not present at the events that are depicted in the DVDs. Stevens was convicted under Statute 48 which states:

(a) Creation, sale, or possession.--Whoever
knowingly creates, sells, or possesses a depiction
of animal cruelty with the intention of placing that
depiction in interstate or foreign commerce for
commercial gain, shall be fined under this title or
imprisoned not more than 5 years, or both.

The statute further establishes that the law “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The statute also refers to the law that defines illegal animal cruelty; the action is illegal in the United States.

Stevens appealed on the basis that his conviction violated his First Amendment rights, taking the case the the U.S. Supreme Court. The Court reversed his conviction and that is the issue at hand.

Liptik's statement above was referring to the motivation of the creation of statute 48: “crush videos.”

“Crush videos” are “ A crush video is a depiction of 'women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.” These videos are considered “obscene.”

The issue with the Stevens' case is that the videos he marketed and sold are not considered “obscene” or “crush videos.” His conviction and appeal brought to light the argument of whether or not the depiction of illegal animal abuse should be categorized as unprotected speech.

The Supreme Court said “no.”

The Court brought up many very important issues regarding the law, especially the law's definition. The Government attempted to reference the Miller case, in which the SLAPS test emerged from, by justifying the exceptions test within statute 48. The Justices pummeled the court with various hypotheticals that would challenge the vagueness of statute 48's exception test which states that exempt material must have “serious religious, political, scientific, educational, journalistic, historical, or artistic value:” the educational and artistic value of Spanish bullfighting; depictions of hunting aired in the off-season; “stuffing geese for pate de foie gras.” The list goes on.

The Justices illustrated the “over breadth” of the law as it is currently written. The law was intended to prevent and prohibit “crush videos,” yet it states nothing regarding “prurient interests” or “obscene” content.

I agree that Ferber should not apply to this case. This case deals with animals and not humans. Humans take precedence over animals and the physical and psychological consequences are different among the two.

I understand the logic behind the scrutiny that the Justices applied, but I do think that there should be a law that prohibits the creation, sale, and possession of depictions of animal cruelty for a variety of reasons.

The same principles that support the prohibition of the action, in this case animal cruelty and abuse, should give some foundational support to a law prohibiting the depiction of such actions. Even within the U.S. v. Stevens documents, it says:

“The acts of animal cruelty that form the predicate for § 48 are reprehensible, and indeed warrant strong legal sanctions. The Government is correct in arguing that animal cruelty should be the subject of not only condemnation but also prosecution.”

It does not makes sense to me that the Court would feel so strongly about the actions and yet not support (on some level) the creation of a law that prohibited the creation, sale, and possession of such material. It was only Justice Breyer that hinted at this possibility when he stated, “Rather than let the public guess what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit.”

I totally agree with him.

I would adopt the philosophy of Zecheriah Chafee and label these depictions “worthless” and unprotected.

I cannot find a “slight social value as a step toward truth” in a video of a woman taking her heel or foot and crushing an animal for her and her audience's sick pleasure.

Furthermore, besides finding depictions of animal cruelty and abuse utterly worthless, there is an interest in protecting society from not only seeing these types of materials but discouraging the desensitization of society to animal cruelty. Animal cruelty has been linked to youth violence, as well as violence in general.

One could possibly argue Feinberg's Offense theory, and state that there is little social value and yet a great degree of offense among the majority of the public, therefore the amount of protection may be questioned and possibly limited.

Unfortunately, the law as it stands is not clear enough and therefore it is unconstitutional.