Don't Kill the Messenger

A flurry of First Amendment cases initiated this year's Supreme Court term which began this week. Among them are another review of the McCain-Feingold act limiting political expression by lobbyists, at least a portion of which is expected to be declared unconstitutional. Additionally there is a case from California regarding the Federal Government's decision to sell publicly owned land to a private foundation. No problem there, except that on the specific land a war memorial was erected. No problem there, except that the war memorial was in the form of a large cross. Muddying up the waters is that the cross was erected in 1952 and the first formal complaint did not come till 40 years later. We will get to these issues in later columns but today let's draw attention to a case argued this past Tuesday.

It involves a 1999 Federal Law prohibiting "commercial trafficking in animal cruelty" which prohibits "audio and video depctions in which a living animal is intenitonally maimed, mutilated, tortured or wounded or killed if the conduct was illegal where the depiction was sold." The purpose of the law was to prohibit the distribution of "crush videos" which are videos involving a certain, apparent, sexual fetish of watching women wearing high heels stepping on and killing small animals.

Defenders of the legislation say that the law is necessary and akin to legislation prohibiting the distribution and possession of child pornogrophy. Which, of course, is outside the scope of First Amendment protection. Sounds good on paper. Problem is, as skeptical Justices pointed out, the statute could for all of its good intentions decide what is legal or not depending on the whim of a overzealous prosecutor.

Justice Ginsburg asked if the law means that a documentary depicting cockfighting could be banned?

Justice Stevens, the oldest judge on the Supreme Court rumored to be retiring at the end of the term, sharply questioned whether a film depicting hunting with a bow and arrow could be subject to prosecution?

Justie Breyer asked about videos depicting the fattenting of geese in preparation of making foie gras. A food regularly targeted as inherently cruel by animal-rights activists.

Then the Court's ultimate original constructionist, Justice Scalia asked proposed, "What if I am an afficianado of bullfights, and I think contrary to the animal cruelty people, they ennoble both beast and man?"

The Solicitor General defending the law, countered that the pupose of the legislation was not to stamp out any potential hypothetical case within the imagination of creative justices but was targeted to deal with a real-life situation. Crush videos, which are, to understate it to most people, despicable.

The problem is, that like any well-intentioned but poorly drafted legislation, it is possible that the application gets away from the purpose. Robert J. Stevens is a self-described dog lover. Stevens also is a film distributor. The thing is, his films depicted blood thirsty pit bulls fighting eachother to the death. It was not alleged that he owned pitbulls showed in his fim, or even that he was instumental in causing the fighting. Merely that he filmed and distibuted the combat. He was prosecuted based on the 1999 law and was found guilty by a Pittsburgh jury. Subsequently he was sentenced to a 3-year jail term, which incidentally is longer than Pro-football player Michael Vick served who did own and cause pit bulls to fight to the death.

Rather than accept the sentence, Stevens challenged the law. Stevens said his purpose, as a "dog lover," in distibuting the video was to provide information about pit bulls, specifically to educate the public. Perhaps picking up his line of reasoning, the newest Justice, Sonia Sontamayor, asked the Government's lawyer David Kaytal about a documentary regarding pit bulls: "Off the Chain" which was widely regarded as an expose of dog fighting. Sontamayor noted that the documentary had "much, much more footage on the actual animal cruelty" then Stevens' film.

The 1999 law does exempt materials with "serious religious, political, scientific, educational, journalistic, historical or artistic value." The problem is Stevens is claiming educational value just as Roma's documentary had uncontroverted journalistic value. Who is to determine that it does not?

Justice Breyer seemed to sum up the skepticism of the Judges when he asked Kaytal if the Congress' purpose was to ban "crush videos" why not draft legislations specifically addressing Crush videos?

The thing with legislation which conflicts with conduct certainly protected by the First Amendment, especially in this Country which prides itself on its "freedoms," is that restrictions to those freedoms have a real effect. Legislation which may be popular in the abstract have consequences to not just society, but real living people: all of us. The Court, by its skepticism seemed to indicate that no one is defending puppy crushers. But in punishing those that do wrong, we should be mindful not to kill the messenger along with the message.