- The Washington Times - Wednesday, October 7, 2009

The Obama administration asked the Supreme Court on Tuesday to let stand a federal law barring some depictions of animal cruelty, such as dogfighting videos, by declaring that such images are not protected by the First Amendment.

But a broad spectrum of opponents of the 10-year-old federal law, which included the National Rifle Association and the American Civil Liberties Union, argue that the law is too broad and could lead to prohibitions against several kinds of otherwise legal products, including hunting videos.

“I think at some level Congress has a job to write with a scalpel, not a buzz saw, in the First Amendment area,” said Patricia A. Millett, a lawyer who argued before the justices Tuesday on behalf of a Virginia man who was convicted and sentenced to three years in prison for selling videos that depicted dogfighting.

Ms. Millett argued that the law is so vague, the government is essentially asking the Supreme Court to define it. “This court’s job is not to write the statute for Congress,” she said.

Congress passed the law in 1999 aimed at combating videos depicting a bizarre sexual fetish that involved killing animals. Known as “crush videos,” they featured women in high-heeled shoes or barefoot stepping on and killing small animals.

But no one has ever been prosecuted for selling “crush videos.” Robert Stevens, the man whose case was being argued Tuesday, was the first person ever prosecuted under the law and is still one of only three. Mr. Stevens was convicted in 2005 on charges of selling depictions of animal cruelty and was sentenced to three years in prison.

In contrast, NFL quarterback Michael Vick received a two-year sentence for running a dogfighting ring even though Mr. Stevens, who also narrated the dogfighting videos that landed him in trouble with the law, was never accused of playing any role in actual dogfights.

The justices showed little enthusiasm for the law, which already has been declared unconstitutional by a lower court. The Obama administration was appealing that ruling to the Supreme Court.

“Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit,” Justice Stephen G. Breyer said. “You are worried about dogfighting; write a statute that focuses on that.”

Deputy Solicitor General Neal K. Katyal said Tuesday that when the law was passed, there was a “robust market” for “crush videos.” He estimated that 3,000 different videos were available at the time.

Mr. Katyal said the point of the law was to “dry up” the market for “crush videos.” According to Mr. Katyal and a brief filed by 26 state attorneys general, the law was very successful, as the market for such videos quickly evaporated.

Mr. Stevens advertised videos in an underground magazine called “Sporting Dog Journal,” and was arrested after selling three videos to undercover law enforcement officers in Pennsylvania.

Two of the videos - titled “Pick-A-Winna” and “Japan Pit Fights” - showed footage from the 1960s and 1970s of fights between pit bulls in the U.S., where such fights are illegal, and Japan, where they are legal. The third video, called “Catch Dogs,” showed dogs on hunting trips chasing down and attacking pigs and wild boars.

Ultimately, the 3rd U.S. Circuit Court of Appeals in Philadelphia overturned the conviction and found that the law against selling depictions of animal cruelty violated the First Amendment’s guarantees of free speech.

The federal government wants the Supreme Court to reconsider that ruling.

But the justices focused on the broad scope of the law, which makes depictions of animals being “maimed, mutilated, tortured, wounded or killed” illegal. The justices appeared equally troubled that the law has exemptions allowing the depiction of animal cruelty for educational, historical, journalistic, religious or scientific purposes.

Justice Sonia Sotomayor seized on the issue of the exemptions, noting that a recent documentary film about pit-bull fights called “Off the Chain” included “much, much more footage on the actual animal cruelty than the films at issue here.”

Mr. Katyal conceded that “the line will sometimes be difficult to draw.”

Justice Antonin Scalia noted that the exceptions to the law do not include entertainment, leading him to question whether the law could be used to ban hunting videos and television programs.

“Most of the hunting videos I have seen people watch [are] for the entertainment,” Justice Scalia said. “They like to see a hunt.”

Mr. Katyal stressed that the law does not apply to hunting videos, unless the videos showed torture or mutilation or other animal cruelty.

“If you shoot a little low and wound the animal, that is cruelty even though you didn’t intend that?” Justice Scalia asked.

“Justice Scalia, with all due respect, I think the images in this case and what Congress was getting at was not shooting a little low,” Mr. Katyal said. “These are the most horrific images that you can imagine of cruelty to living animals.”

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