Supreme Court Strikes Down Dog Fighting Video Law

240-dogfightingIn a major free speech victory, the Supreme Court has ruled in the Stevens cases — striking down a law designed to punish the sale of dog fighting and so called “crush films.” The vote was 8-1.

This case focused on a federal law criminalizing sale or possession of such images. The Court found it was an unconstitutional limitation on free speech, a decision I strongly agree with.

These films discussed earlier often show animals being crushed or bitten for a group of people with sadistic and subhuman tastes. However, it may also present the ultimate question of free speech. States are moving toward treating the sale and even possession of such images as a crime.

In this case, the court of appeals also found that the law unconstitutionally restricted speech. For the story and Third Circuit opinion, click here. Judge Brooks Smith wrote: “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.”

The civil liberties concern is the degree to which the government can criminalize the content of picture, emails, and publications. Animal cruelty is a broad potential category of restricted speech. The federal law defines it in the following way:

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State . . .

This would obviously include any cockfighting or dogfighting videos. It notably also includes auditory depiction and could include small audio clips interpreted as cruel under this definition. There is an exception for “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” That would appear to exclude religious sacrifices. However, this standard can be read broadly or narrowly. What does “serious” mean? A serious religion or artist or journalist is a matter of considerable debate. Does this include the harming of animals for films when it is not necessary to do so but the director wants gritty reality?

Chief Justice Roberts wrote the majority opinion. Only Justice Alito dissented. Roberts noted that the law “creates a criminal prohibition of alarming breadth” and said that the Court was not willing to uphold the law “merely because the government promises to use it responsibly.”

In a remarkably strong opinion, Roberts rejected the government’s overall claims:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Cranch 137, 178 (1803).

Here is the opinion: Stevens Decision

46 thoughts on “Supreme Court Strikes Down Dog Fighting Video Law”

  1. To me, this is not about protecting views or ideas. You can TALK and DISCUSS crush films all day long. It is the PRODUCTION and SALE of the videos that is the issue. The production IS covered under animal cruelty statutes as Mike points out. The sale and distribution, however, is not.

  2. Mike A:

    “The decision was the correct one. Society is still free to vigorously prosecute those who engage in animal cruelty.”


    How about those who aid and abet it through promotion of crush films or dog fighting?

  3. The decision was the correct one. Society is still free to vigorously prosecute those who engage in animal cruelty.

  4. Frabjous! Great decision, and coming just when it seemed the entire nation had been over-imbibing vats of Kook-Aide freely distributed by radical extremist groups disguising themselves as ‘bunny huggers’.

    For a moment there, I thought we were all going to be forced to join the newly-launched “Humane Party” and vote in Elsie the cow as our next president.


  5. I read a quote posted at ‘Legal Satyricon’ that referenced Noam Chomsky so I quoted it and another similar one by him regarding free speech/free expression (from wikiquote).

    Chomsky’s quotes apply equally to the Westboro Phelps Family.



    “If we don’t believe in free expression for people we despise, we don’t believe in it at all.”

    Interview by John Pilger on BBC’s The Late Show, November 25, 1992

    “If you believe in freedom of speech, you believe in freedom of speech for views you don’t like. Goebbels was in favor of freedom of speech for views he liked. So was Stalin. If you’re in favor of freedom of speech, that means you’re in favor of freedom of speech precisely for views you despise.”

    In Manufacturing Consent: Noam Chomsky and the Media, 1992″

    End Quote

  6. It seems pretty clear that this law was essentially struck down due to its vague language. A carefully crafted statute aimed just at crush films would probably be upheld.

  7. AY’s analysis is a good one. Like pornography, I would treat these “films” as arguably obscene images and subject them to community standards via the jury system with this charge to the panel:

    “Whether to the average person, by applying contemporary community standards, would find that the dominant theme of this material, taken as a whole, would appeal to the prurient interests of the voluntary viewer.” “Prurient” is defined in common parlance as, ‘marked by or arousing an immoderate or unwholesome interests or desire.'”

  8. Remember the old adage, “The ends don’t justify the means”? Is there a corresponding “The ends can disqualify the means”? I, like I think most people, am repulsed, slightly confused and very much worried by the idea that a “crush video” would be appealing and arousing to some people. But it’s that emotional reaction to the “ends” that drive our discussion of this issue. We are repulsed that others are sexually aroused by watching this material, therefore we want to ban it, and we use the suffering of the animal as the excuse.

    Weather it’s a hawk, a boa constrictor or a cat “practicing” the kill with it’s prey, rodents die in pretty terrifying and painful ways in “nature.” We are neither talking about banning the feeding of mice to snakes in zoos, nor banning the distribution of nature documentaries. In the zoo, humans intentionally cause the mouse to die from piercing and crushing, and in the documentary, we watch the mouse being ripped limb from limb. So, we aren’t reacting to the suffering itself of the animal, rather, it’s the context and the purpose of the suffering we object to.

    It seems reasonable that we continue to ban the infliction of suffering on animals in certain circumstances (dog fighting and the making of “crush videos”) but that we recognize the video that results, as repulsive as it is, is protected speech.

    I got through the first few pages of Alito’s dissent, and he seems to be saying that he would prefer to leave the very broad law in place, and then uses individual cases to chisel it back to a more reasonable scope. I suspect that if the law was a very broad set of regulations on business, he wouldn’t feel comfortable leaving it in place, and making a series of businesses bear the burden of chipping it down to size in appellate court cases.

  9. The one lone exception that I omitted was child porn. They may come crashing in for one reason and then if Child porn is found you can be arrested for the simple possession, which is a good thing.

  10. I think the distinction is kind of like porn. It used to illegal to possess it, but once you got it home the sheriff could not break down your door and arrest you for possession of illegal porn. I think Blackmon got this right. The Right of Privacy. Did you hear that Alito? P-R-I-V-A-C-Y !!!!!!

    One would expected at least two dissents maybe three. But the one I was thinking of was Scalia being the lone dissent. Much to my surprise.

  11. It’s disappointing to see how few people understand the purpose of the First Amendment.

    In part, the First Amendment was based on a trust in our ability as a society to decide what is good and bad. Free speech protects only the distribution of information, and the First Amendment reflects a trust that when all available information is freely distributed — even that which is distasteful — our society can decide what to praise and what to scorn. Preventing the free distribution of information serves only to limit society’s knowledge base. Perhaps if this law were allowed to stand, after a generation or two we would collectively forget why we decided animal cruelty was a problem in the first place.

    In other words, this law would have prevented distribution of knowledge of the nature of animal cruelty. We rightly take for granted the knowledge that animal cruelty is abhorrent, but what if we had never seen it, and our parents and teachers had never seen it? If you don’t know what animal cruelty is, how can you decide it’s a bad thing?

    It is never a bad thing to learn something new, even if what you learn is distasteful. Ignorance is not bliss. Ignorance is just ignorance.

  12. “These are the dark days of the court. Complicit in torture, death, election manipulation, animal cruelty and the corporate rape of the American people. And it is getting worse by the day.”

    When did the knowledge that these ‘possessions’ are tools for influencing other human beings get lost?

    What the F#@$$%^%$CK is a crush video?
    Who thinks it could possibly be anything other than an express vehicle for causing inhumane treatment?

    I’m wondering where is the sanity on the bench these days????

    This is just putrid

  13. From Justice Alito’s dissent:

    “It must be acknowledged that §48 differs from a child pornography law in an important respect: preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos. It was largely for this reason that the Court of Appeals concluded that Ferber did not support the constitutionality of §48. 533 F. 3d, at 228 (“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”). But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos.

    The animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country. In Ferber, the Court noted that “virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating ‘child pornography,’” and the Court declined to “second-guess [that] legislative judgment.”6 458 U. S., at 758. Here, likewise, the Court of Appeals erred in second-guessing the legislative judgment about the importance of preventing cruelty to animals.”

  14. Interesting that Judge Smith implies here that videos of intentional violence to dogs causes less “psychological harm” to children than Playboy magazine.

  15. beaner

    It SHOULD be legal to yell fire in a crowded theater. If you do and it isn’t so, then you should be banned from the theater hence forth. And if someone dies, charged with that crime.

  16. I don’t think making something hurt and bleed for pleasure has anything to do with free speech. Sounds like animal cruelty to me.

    These are the dark days of the court. Complicit in torture, death, election manipulation, animal cruelty and the corporate rape of the American people. And it is getting worse by the day.

  17. This supreme court worries about free speech over Life – so I guess we can now yell fire in a movie theater as long as we film the people getting hurt or killed because it is Free Speech again.

  18. “… the law “creates a criminal prohibition of alarming breadth” and said that the Court was not willing to uphold the law “merely because the government promises to use it responsibly.”


    One wonders if that reasoning applies equally to surveillance of private citizens by the government.

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