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Gypsy, pictured here, has since healed and is happily homed by those who rescued her.

Written by: Tucker Culbertson

If a picture costs a thousand wounds should that speech be free?

If answering “Yes” stokes a market, causing thousands more such wounds, should we answer “Yes”?

This is about dog fighting videos.

By a vote of 8 to 1, the Supreme Court recently struck down a federal law which criminalized some commercial depictions of cruelty to animals.  Justice Alito’s lone dissent says most of what needs to be said about what’s wrong with the majority opinion.  I’ve written this post only to emphasize that the Court, and most commentary, has buried the real headline.

Despite the ruling in U.S. v. Stevens, dog fighting videos can still be criminalized.  But depictions of animal cruelty have been granted some measure of First Amendment protection.  The value of nonhuman life has been significantly diminished by the majority’s legally unnecessary and logically erroneous distinction between the violent commercial exploitation of human versus nonhuman beings.

Robert Stevens sells videos of dog fights.  A federal law [Section 48 of the U.S. Code] criminalizes some commercial depictions of animal cruelty.  In 2004, Stevens was convicted and sentenced to just over three years in prison for violating Section 48.  The Supreme Court overturned Stevens’s conviction because eight justices decided Section 48 violated the First Amendment right to free speech.

For those unfamiliar with First Amendment law, not all speech is free, despite the Constitution’s seemingly absolute language on the matter.  In general, the government cannot single out and prohibit speech based on its content.   However, there are exceptions to this rule.  Defamation, fraud, and obscenity are a few examples of speech acts which are – precisely because of their content – categorically unprotected by the First Amendment.

Even protected speech can be regulated.  Such regulation, though, cannot [among other things] be what’s called overbroad.  A regulation is overbroad if its terms can be read to prohibit speech that ought to be protected along with speech that needn’t.

The Court found Section 48 overbroad and thus struck it down.  Section 48 provided that:

“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.”

Section 48 defined animal cruelty as:

“any… depiction… 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.”

The Court found Section 48 overbroad for two main reasons.

First, it could be applied to depictions of activities that are legal where they were created, but illegal where sold or possessed.  So, a hunting video made in Georgia (where hunting is legal) could become an illegal possession in Washington D.C. (where all hunting is prohibited.)

Second, the Court didn’t like Section 48’s definition of animal cruelty.  The Court found that it could be used to prosecute videos of any illegal activity involving animals – not just cruel ones.  So, depictions of un-cruelly hunting endangered animals or un-cruelly slaughtering a stolen cow could trigger prosecution.

I can mostly (but only mostly) stomach this overbreadth analysis.  Congress drafted a sloppy law based directly on the sloppy language of Supreme Court precedent, but the present Court wants to tidy up.


The Court absolutely didn’t say that Congress can’t criminalize the creation, sale, or possession of depictions of dog fighting.  The Court just said that Section 48, as written, won’t do.  So Congress has to write a new, narrower law.


But the tragedy of this nearly unanimous opinion is that the Court didn’t stop with the issue of overbreadth.  It didn’t start with it either.  Rather, the opinion opens by declaring as a matter of constitutional law that the depiction of animal cruelty does not fall among the categories of unprotected speech [like defamation, fraud, and obscenity which I mentioned above]:

“The Government’s primary submission is that [the regulation] necessarily complies with the Constitution because the banned depictions of animal cruelty, as a class, are categorically unprotected by the First Amendment. We disagree.”

The Government analogized depictions of animal cruelty to depictions of child sex abuse.  Child pornography is categorically unprotected.  Eight justices disagreed with the analogy, stressing that depictions of child sex abuse could be criminalized in addition to the abuse itself because:

“The market for child pornography [is] intrinsically related to the underlying abuse, and [is] therefore an integral part of the production of such materials, an activity illegal throughout the Nation…[I]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute…”

The Court’s legal and logical error here is dumbfounding.  For better or worse, Section 48 said nothing of depictions of animal cruelty for personal use.  It addressed only those depictions intended for commercial circulation.  How, then, can the banned depictions not be “intrinsically related to the underlying abuse” when that abuse is the sole value of the commodity, and when only commodified depictions are banned?  The creation, sale, or possession of such depictions is surely “an integral part of conduct in violation of a valid criminal statute” since, as the Court acknowledges, cruelty to animals is uniformly prohibited throughout the U.S.

To repeat: I’ve written this post only to emphasize that the majority, and most commentary, has buried the headline of U.S. v. Stevens.  Dog fighting videos can still be criminalized, but depictions of animal cruelty have been granted some measure of First Amendment protection.  The value of nonhuman life has been significantly diminished by the majority’s legally unnecessary and logically erroneous distinction between the violent commercial exploitation of human versus nonhuman beings.


It is imperative for me to note that I find the public discourse around dog fighting both racial and racist in ways that I won’t fully address here.  However, I will say that – for but one example – what I read and heard about Michael Vick was absolutely nothing like what I read and heard about Gretchen and Roy Jackson.

After Vick’s arrest, strident condemnations of dog fighting issued forth from the floor of Congress, the local news, animal rights advocates, and lots of white folks I know.  People talked about hip hop, pit bulls, gangstas, and cruel subhuman behavior.

I witnessed very different things when Barbaro – a race horse owned by Gretchen and Roy Jackson – shattered his ankle at the Preakness.  Attended by an ambulance, concealed from view, Barbaro was escorted away to suffer through multiple surgeries before being ultimately euthanized.  All during Barbaro’s demise, I found sober discussion of the dangers of sport and sentimental concerns for the life of a champion.  I found very few outraged rants about big-hatted, mint julip-sipping white ladies and gentlemen, or the truly brutal business of horseracing.  The death of a four-year old – owned as property, bred to run and breed and make a fortune for his master – was deemed a tragedy, but not a crime.

In an NPR interview, Steve Inskeep spoke with Steve Haskin of The Blood Horse magazine.  Here’s an excerpt:

“INSKEEP: What did you see of this injury? How did it happen?

Mr. HASKIN: Well, nobody really knows how it happened, because these injuries can happen in any different number of ways. But basically, he just took a bad step about a 100 yards coming out of the gate, and unfortunately, he was right in front of everybody. It was just absolutely gut wrenching to see…

I could see him standing there with his right back leg just dangling, as if it was nearly detached from the rest of the leg. At first there was stunned silence, something that’s – it almost like it was surreal, as if it’s not happening. And then the mood changed abruptly when they brought out the ambulance and set up the screen shielding the horse from the crowd, because that usually is a sign that they’re going to euthanize the horse.

INSKEEP: Well, let me ask about that, Mr. Haskin. I want to clarify that term, life threatening, because in the case of a horse, doesn’t that mean that the owner might make the decision to put him to sleep?

Mr. HASKIN: …[I]t depends on insurance. But the owner is not going to put this horse to sleep unless he has to put this horse to sleep, because they have already invested tens and tens of thousands of dollars just for the surgery alone, and then there is the recuperative care. So there is no problem at all as far as keeping this horse alive monetarily.

INSKEEP: And explain why that investment, and we have to call it an investment I suppose, [i]s made in saving the horse?

Mr. HASKIN: Well, first of all, the public consciousness now is amazing… Plus the fact that he is worth so much money as a stallion, regardless of how much money he is insured for. If this horse survives, he is going to be worth maybe $40-50 million dollars as a stallion.

INSKEEP: …[I]s there anything about the breeding of today’s thoroughbreds that makes them more fragile?

Mr. HASKIN: Well, yes, basically. What we’ve done unfortunately through the year[s], we’ve infused so much speed into the blood of the thoroughbred, and combined with the harder and faster racetrack surfaces, it’s harder keeping horses sound that it used to be.”

I do not mean to suggest that Barbaro’s treatment was at any point comparable to that of Vick’s dogs, which – according to his indictment – were hanged, drowned, electrocuted, or beaten to death when they failed to fight well.  However, I do believe that the discursive discrepancies involving these different forms of violent commercial animal exploitation are a result not only of the disparate suffering inflicted, but also of certain racial and racist ideologies.

And that’s a serious problem which those of us invested in justice for nonhuman animals must confront.  As is dog fighting.   As is U.S. v. Stevens.