Supreme Court Crushes Small Arguments

A Little Backstory on the Front End

After roughly twenty years of regularly being called inhumane for using standard training equipment in the course of working with dogs and horses, I recently took some friendly fire from some folks who take my blog posts to be the work of an animal rights activist.

I take animal welfare seriously enough. Animal cruelty strikes me as basically degenerate and thoroughly deserving of stigma. Human society is well served in my opinion by laws that intelligently and effectively minimize its occurrence; and such laws, once enacted, ought to be consistently enforced. Of course, this presupposes one is drawing from a rational definition of cruelty, not a radical one.

The concept and enforcement of animal rights is a trickier proposition, both morally and legally. As for ill-conceived activist legislation, suffice it to say it’s not my cup of tea.

So I was relieved to read news of Tuesday’s Supreme Court decision, which came down hard against a 1999 federal law that criminalized the creation or possession of depictions of animal cruelty with intent to distribute.

As is highly traditional, the law in question appears to have been inspired by revulsion at non-standard sexual depravity, in this case a little known fetish that succeeded in generating a perfect storm of political grandstanding.

At issue were what are known, at least among congressmen and mainstream media, as “crush videos”, which I’m told depict stiletto-heeled dominatrices stepping on and killing small animals. Also not my cup of tea, incidentally, but chacun à son goût.

Crush Videos and the First Amendment

The law was aimed at crushing what was estimated to be a small but growing market. But, as is also traditional, Congress overstepped, fashioning a statute that effectively criminalized a much wider range of conduct, and in so doing ran afoul of the First Amendment.

The case, brought by the office of the Solicitor General, that put the 11-year-old Depiction of Animal Cruelty Act to the constitutional test involved author and documentary producer Robert Stevens, convicted in 2005 of selling three videotapes about pit bulls to undercover agents. He was sentenced to three years in prison, but a federal appeals court threw out the conviction. Stevens was also one of the first people charged under the act.

The films reputedly show pit bulls catching wild boars during hunting trips, engaged in a dogfight in Japan (where dogfighting is legal), and engaged in fights shot here in the US in the 60s and ’70s. By all accounts, apart from his lawyer’s perhaps, Stevens is pretty clearly in the business of glorifying pit fighting, which I’m sure strikes most of us as deplorable.

The problem is that darned amendment, which our Supreme Court justices seem pretty stuck on protecting against the wrongheaded efforts of narrow-minded do-gooders, in this case within the Department of Justice.

The essence of the government’s argument was that as with child pornography, the prevention of animal cruelty rises to the level of trumping free speech, and that because its depiction has no social value or expressive content, it is not entitled to First Amendment protection.

To put the government’s argument into perspective, the Supreme Court last declared a category of speech to be undeserving of First Amendment protection in 1982. That was child pornography. Other unprotected speech includes fighting words, obscenity, threats, libel, and incitements to illegal activity.

It is a short list.

So a key question in the Stevens case was whether animal cruelty rises to the same level of government concern underlying the above rulings. In other words, does the state have a compelling interest in curtailing depictions of animal cruelty, on the order of the interest it has in preventing riots, threats, and child pornography?

In an 8 to 1 ruling, the high court said no. Chief Justice John Roberts, writing for the majority, said,

Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified. But if so, there is no evidence that ‘depictions of animal cruelty’ is among them.

The Chief Justice also criticized the government for proposing a balancing test that would pit the “value” of any speech against its “societal costs,” saying,

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.

and,

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 cost and benefits.

Describing the “alarming breadth” of the law in question, Roberts explained,

A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another state where the same conduct is unlawful.

He pointed to the problem that since hunting is illegal in Washington, D.C., the law could be applied to

any magazine or video depicting lawful hunting, so long as that depiction is sold within the nation’s capital.

Roberts rejected the government’s insistence that federal prosecutors would only enforce the statute against acts of “extreme cruelty,” noting that

The First Amendment protects against the government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it reasonably.

Besides, federal prosecutors had already strayed from the purported mission of the statute by prosecuting cases involving depictions of dog fighting, as opposed to restricting themselves to

wanton cruelty to animals designed to appeal to a prurient interest in sex.

Those were the words used by President Clinton to describe how the executive branch would interpret the statute. In his opinion, Roberts points out that

No one suggests that the videos in this case fit that description.

In fact, none of the cases in which the law had so far been applied fit Clinton’s description. And no cases involving actual crush videos were ever brought.

http://www.flickr.com/photos/mjb/ / CC BY-NC-ND 2.0“>

The HSUS and Wrongheaded Analogies

Wayne Pacelle, president of the Humane Society of the United States (HSUS) explains why:

That law dried up the market. It was very successful without a single prosecution. So we turned our attention to those peddling dog fighting videos. And all the arrests made under that 11-year-old statute were for selling dog fighting videos.

Okay, raise your hand if you are wondering why Wayne Pacelle is speaking as if the HSUS is personally driving these arrests. While you’re at it, raise a hand if you were wondering earlier just how it came to pass that Congress became aware of the threat posed to our nation by dominatrices wielding small animals. As it turns out, the answers are related.

According to an article by Lisa Wade McCormick for ConsumerAffairs.com, Pacelle claims it was an HSUS investigation into crush videos that originally brought them to the attention of legislators. The HSUS also takes credit for fueling the current suit, which ended in the high court’s 8 to 1 smack down.

Did you think the HSUS was busy funding shelters? Their mission statement reads as follows:

The Humane Society of the United States (HSUS) is the nation’s largest and most effective animal protection organization. Established in 1954, The HSUS seeks a humane and sustainable world for all animals – a world that will also benefit people. We work to reduce suffering and to create meaningful social change for animals by advocating for sensible public policies, investigating cruelty and working to enforce existing laws, educating the public about animal issues, joining with corporations on behalf of animal-friendly policies, and conducting hands-on programs that make ours a more humane world. We are the lead disaster relief agency for animals, and we provide direct care for thousands of animals at our sanctuaries and rescue facilities, wildlife rehabilitation centers, and mobile veterinary clinics.

Providing care for “thousands” of animals may sound impressive, until you notice that their total revenue topped 100 million dollars in 2008, of which less than 7 million went to animal care facilities (while over 5 million went toward post-retirement benefits). Of course, with a name that trades liberally on its resemblance to that of myriad local Humane Societies, it’s well understood, not least by the HSUS itself, that donors commonly mistake the HSUS for a sort of umbrella fundraising organization for local shelters. But in fact, the HSUS has no such affiliation. And both Charity Navigator and The American Institute of Philanthropy have been critical of the HSUS for failing to live up to its mission.

Where does the money go? According to their 2008 Annual Report, the real money goes toward fundraising (over 27 million, or four times the sum going to animal care facilities) and a category of expense dubbed “Campaigns, litigation, and investigation” (over 28 million). You know, investigations like the one that supposedly turned up over 3,000 crush videos. Speaking of which, the HSUS claims crush videos are again proliferating on the internet. According to Wayne Pacelle,

Congress should act quickly to enact this legislation to prevent some of the most extreme forms of animal cruelty I have ever seen. Anyone who has seen the clips of women in high heels literally crushing small animals will understand the urgency in passing a bill to prevent the sale of these vile images.

Well, either they’ll understand the urgency of passing legislation, or they’ll… never mind. I for one couldn’t find any. Not saying they aren’t out there somewhere, readily accessible to those more in the know than myself. Just saying perhaps there are more pressing (no pun intended) issues to address.

Was that the strategy all along? I mean, the HSUS turned its attention to dog fighting videos pretty efficiently, despite the lack of any presumable “appeal to a prurient interest in sex,” almost as if that had alway been the plan. I tried looking for information regarding the HSUS investigation that led to the passage of the Depiction of Animal Cruelty Act in the first place, but couldn’t find anything beyond conflicting assertions regarding the volume of videos it uncovered.

I did find something interesting, though. I found the following statement from HSUS President Wayne Pacelle:

The federal Depiction of Animal Cruelty Law is the only tool available to crack down on this horrific form of extreme animal cruelty. We wouldn’t allow the sale of videos of actual child abuse or murder staged for the express purpose of selling videos of such criminal acts, and the same legal principles apply to despicable acts of animal cruelty.

Alright, raise your hand if you spotted the analogy. The one between animals (not even particularly intelligent ones) and children? Sound familiar? It’s the same flawed analogy used against remote training collars and a boatload of other things that are in fact appropriate for dogs, while being very bad for children.

Utopian Visions or Slippery Slopes?

Unfortunately, this is where the trail of animal rights often seems to lead, to a land in which dogs, cats, and maybe even mice (depictions of which beneath stilettos are very popular with the sexually deviant according to the HSUS) share the same protections, at least in many respects, as human children.

Fans of the “slippery slope” argument (or of crush videos and pit fighting), consider these idiotic analogies between the rights of animals and the rights of children to be a gift. I consider them tragic. They are a basic reason otherwise rational people may experience gut-level aversion in the face of supposedly undue concern for animal welfare. They are specious and simple-minded, and as such corrupt legitimate debate. And they are dangerous, at least in the hands of men like Wayne Pacelle, who harbor real-world ambitions to see them codified into law, and who sit on enough money, lawyers and lobbyists to succeed at doing so.

I would guess the “alarming breadth” of the Depiction of Animal Cruelty Act was not accidental. I would guess the test to the First Amendment that the statute presented was always anticipated. It would explain why HSUS investigators were searching for small animal pornography (granted, there is at least one alternate explanation). After all, if they were looking for material capable of inciting legislation that would put animal protection on a par with child protection, such a scavenger hunt would make perfect sense. As would the overly broad wording of the law itself, and the push to defend that wording to the high court against too much constitutional scrutiny.

I can’t prove any of that, but I can’t prove the existence of crush videos either.

In the meantime, I take care to tread carefully along the road between concern for animal welfare and lobbying for animal rights. It may be steep at places, but I’m reasonably sure of foot.

© Ruth Crisler and Spot Check, 2010.

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  1. EmilyS’s avatar

    “It would explain why HSUS investigators were searching for small animal pornography (granted, there is at least one alternate explanation). ”

    GASP surely you can’t mean what I’m thinking you mean. Why, that would be like saying high executives of the SEC were trolling the Internet for pornography while supposedly working to protect the financial assets of the American people during the worst (or 2nd worst) financial crisis in our history.

    Oh wait…..

    Reply

    1. ruthcrisler’s avatar

      Ha!

      Ironically, I’d be a whole lot more comfortable with the situation were it merely a matter of gross misconduct.

      My gut says the crush phenomenon, at least as far its manifestation in the actual crushing or impaling to death of the sort of animal one might feel a strong urge to protect from abuse (kittens, say), was largely manufactured out of whole cloth.

      I’d bet the vast majority of those 3,000 videos turned up by HSUS investigators did not involve creatures commonly kept as pets.

      Also, I just can’t buy the assertion that this million-dollar market for crush depictions dried up literally over night as a result of the Depiction of Animal Cruelty Act. I mean, think about that. Has the market for illegal drugs or child pornography dried up yet?

      The HSUS sold Congress on the notion that this was a growing market. Exactly how big did anyone imagine it was likely to get?

      Meanwhile, how many dogs die in shelters? Die of neglect? There are bigger fish to fry is all I’m sayin’.

      I keep coming back to the only explanation for the focus on crush being the quest to drive legislation that would create significant legal precedent. That strikes me as the real mission of the HSUS.

      Reply

  2. Nancy’s avatar

    A question that comes to my mind in this is how in the world did HSUS find 3000 of those videos when no one else seems to be able to find even one?
    If they were able to find that many, how is it they were not able to find any of the people who made them?
    Think about it…dog fighting is supposed to be held in ‘secret places’ or ‘underground’ and they see dog fighters in just about anyone who owns dogs of the pit bull breeds. Surely anyone with thier ‘nose for animal cruelty’ would be able to find at least one or two of the people who made or starred in those 3000 videos.
    Seems their help to hands on shelters took a big drop monetarily between their 2008 and 2009 tax returns. In 2009 (with about the same income level as 2008) they only paid out about $450,000.00 to shelters, but thier lobbying amounts were still around $27 million or so, and their pension funds also remained in the millions. Guess it was only the animals who took a monetary hit in the recession.
    The biggest grant in the state of Iowa in 2009 was to the shelter in Fairfield and it seems that money didn’t go to the animals, but to pay for HSUS materials for teachers to use to teach our little children to be lobbyists and to convince their schools to go vegan.
    Guess since this article was actually about the law and the first amendment, maybe we should also delve a little deeper into the RICO suit filed against HSUS, Born Free, ASPCA, et al, for money laundering, paying witnesses, and a few other little oopses that fall under the federal racketeering laws.
    It’s a good thing they have about 30 paid lawyers on staff (some even named in the RICO suit too), as I think they are going to be very busy in court with all the lawsuits pending against them .
    Yep….the HSUS has been very busy and it appears not all of it for the good of animals. Guess that’s why an IRS investigation was recently started. One has to wonder if they will be able to keep their non-profit status or will be begging more donations to help pay those nasty back taxes they might end up owing.

    Reply

    1. ruthcrisler’s avatar

      Well, I like to think that HSUS made the bulk of the alleged videos in house, just for the irony, but I realize that is probably a wee bit far fetched. My guess is that the number of videos was grossly inflated, and that the nature of the videos were deliberately misrepresented.

      I looked for the 2009 financials but didn’t come across them. And I thought about bringing up the RICO suit, but just had to stop at some point. Very glad you mentioned that.

      I notice you number their staff lawyers at 30. According to their 2008 Annual Report, there were only fifteen at that time. Interesting they doubled down in the legal department between then and now.

      Reply

  3. alice in LALA land’s avatar

    I had a large rat in my garage.. I chopped its head off with a very large trap.. but if a stiletto would have done the job.. that is ok with me…I did not film the “incident” nor try to sell it.. but I am sure Wayne would find some way to charge me with a crime under this new law.
    Way to go SCOTUS.. let’s see if they can stay strong under the barrage of AR pressure…

    Reply

    1. ruthcrisler’s avatar

      Yeah, I’ve sent my dogs after a number of rats over the years. Bet death by Jack Russell isn’t any too pleasant either. Nor would it make a whit of difference to any of them, I’m sure, if someone were getting off while it was happening.

      Reply

  4. SmartDogs’s avatar

    I regularly send my dogs after vermin and expect them to kill said vermin. No video, but I have photos. Please pass the handcuffs.

    Post SCOTUS judgment I’m feeling vindicated because Roberts’ opinion mirrors nearly exactly comments I’ve posted elsewhere (and taken some heat for).

    And – while I’m too squeamish to wear stilettos – much less kill critters (even bugs) with them – but if mashing bugs under your heels floats your boat – have at it. If the animals die quickly how is this materially different from what happens at a slaughterhouse?

    Reply

    1. ruthcrisler’s avatar

      No material difference, clearly. But the prurient sexual interest angle gave this puppy wings.

      Here’s to Chief Justice Roberts for looking death by stiletto in the eye and not flinching.

      Reply

  5. EmilyS’s avatar

    the latest version of the “anti crush” law uses this language: “…depicts actual conduct…”. Perhaps there is growing skepticism about the existence of alleged acts portrayed in these alleged films.

    Bonsai kitty, anyone?

    Reply

    1. ruthcrisler’s avatar

      I don’t know that crush is ultimately a hoax on the level of Bonsai Kitty (which I came across while looking for crush, interestingly). But the more I look into it and even just think about it, the more sincerely skeptical I am that it was (or ever could become) the phenomenon HSUS billed it as.

      Apart from one still shot of a crush film purportedly made in Asia involving a kitten, and a recent claim by Wayne Pacelle that they uncovered 12 films involving rabbits, I find no evidence of small fluffy animals being harmed in this manner for the purpose of sexual gratification.

      There were maybe a dozen such films reportedly seized by Scottish police (they call them “squish” there, I think) in the late 90′s, but the most adorable creatures involved in any of those were mice. Seems to me there’s a pretty long history of mouse abuse in this country.

      I’m guessing that if there were ever more than a handful of these films, the vast majority involved insects and inanimate objects, such as stuffed animals.

      Reply

  6. EmilyS’s avatar

    People are astonishingly credulous. The creators of Bonsai Kitty (not so much a hoax as a parody/test of credulity) revel in the number of people and AR organizations who take their joke seriously. The Internet has made this worse.. though on the other hand there are sites like Snopes that make it better..

    Reply

    1. ruthcrisler’s avatar

      I just read the revised bill, and mind you I’m no constitutional scholar, but I’m not sure it’s any more constitutional, despite being less over broad. I see they’re sticking with the crush video straw man, though the bill nowhere specifies that outlawed depictions need have any prurient sexual interest.

      http://thomas.loc.gov/cgi-bin/query/z?c111:h.r.5092:

      Reply

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