Dogfighting Videos: Obscenity or Free Speech?

Justices will determine the line between free speech and animal rights.

September 25, 2009, 3:19 PM

Oct. 2, 2009— -- The issue of violent videos depicting dogfighting will come to the Supreme Court Oct. 6, as justices take on a major First Amendment case and try to determine where to draw the line between free speech and animal rights.

Robert Stevens, a 69-year-old documentary producer, operated a business out of his rural Virginia home called Dogs of Velvet and Steel. While Stevens has said he has long opposed dogfighting, he sought to educate the public about pit bulls by producing films about the breed.

In one video, Stevens, sitting in a rocking chair, talks about tapes shot in Japan in the early 1950s or '60s. It is clear that Stevens is not taping the fight but providing after-the-fact narration.

At one point Stevens says, "I cannot emphasize enough that this video in no way promotes dogfighting or gambling."

Stevens' lawyers say he included the violent, but apparently bloodless, footage to represent what he sees as the admirable traits of the breed.

But his narration provides a play-by-play of the dogs fighting each other. At one point Stevens says, "You know who my pick is."

Stevens marketed his films on his Web site,

The violent depictions in the videos are what landed Stevens in trouble with animal rights organizations and federal law.

He was convicted and sentenced to 37 months imprisonment for violating a 1999 federal law that prohibits "knowingly selling depictions of animal cruelty, with the intention of placing them in interstate commerce." The law was passed to target the problem of animal cruelty.

A federal appeals court came to Stevens' rescue and invalidated his sentence and the statute. The court found that his distribution of the videos was protected by First Amendment freedom of speech.

Case Renews Debate Over Free Speech

The case has ignited debate about what kinds of speech should be protected.

The last time the Supreme Court addressed the issue was in 1982 when it carved out an exception to the First Amendment on the issue of child pornography.

In court briefs, the government links obscenity laws with animal cruelty and argues that neither merits protection from speech.

Solicitor General Elena Kagan writes, "Like obscenity, the depictions are of patently offensive conduct that appeals only to the basest instincts."

But lawyers for Stevens argue that the case is not about dogfighting.

"What this case is about is whether Congress can create whole new categories of speech not protected by the First Amendment," says Stevens' lawyer Robert Corn-Revere. "It's creating a whole new category that has never been recognized as unprotected by the First Amendment."

Some First Amendment supporters have come to Stevens' defense, worrying about restrictions the government can place on speech.

In a brief filed by the Thomas Jefferson Center for the Protection of Free Expression, lawyers write that it is wrong for the government to equate protecting children from sexual abuse with the interest of protecting animals from inhumane treatment.

"Morals, values, religious beliefs, customs and laws compel adult Americans to provide far greater protection to children than they do to animals or even other adults," the group's lawyers write.

Justices Will Have to Tread Carefully

However, the Humane Society argues that Stevens' lawyers are trying to mislead people and that Congress dealt with the problem narrowly.

"The law at issue doesn't cover anything that has any journalistic, educational, artistic or social value," says the groups' lawyer, Jonathan Lovvorn. "When you strip away all the hysteria and rhetoric, this is a narrow law that only applies to those trafficking obscene materials over state lines."

Lovvorn says that even though Stevens claims he is against dogfighting, his efforts to depict images of it and sell them across county lines contribute to animal cruelty.

"If you dry up the interstate market for this material, it will reduce the underlying criminal activity," Lovvorn says.

The justices will have to tread carefully, as they did in 1982, if they are going to try to develop a standard.

Lawyers for Stevens ask how the court can draw the line on other so-called "depictions of animal cruelty" in films such as Errol Flynn's "The Charge of the Light Brigade," where filmmakers used wires to trip over 100 horses, causing some deaths.

The case could be decided as early as this winter.

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