By Molly K. Hooper - 09/30/09 10:15 AM EDT
When the Supreme Court hears arguments on a case involving animal cruelty and freedom of speech next week, Rep. Elton Gallegly (R-Calif.) will be there.
The nation’s high court will decide whether to uphold a law Gallegly helped enact that bans the sale of videos featuring depictions of animal cruelty.
The law does “not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical or artistic value.”
Critics of the law say it is unconstitutional.
The case will touch upon how in the mid-1990s, underground “animal crush” videos spiked in popularity as a result of an unusual fetish.
Gallegly said a district prosecutor told him of the videos — which featured images of women digging their high heels into the skulls of puppies and kittens — that “perverts” were peddling.
“It’s more horrible than you can ever believe. It’s beyond despicable. It’s barbaric,” Gallegly said.
After investigating and talking to his colleagues about taking action to crack down on the cruelty, Gallegly and other lawmakers passed legislation 372-42, and the Senate approved it via unanimous consent.
President Bill Clinton issued a signing statement to point out that the intention of the law, as he saw it, was to “prohibit the types of depictions … of wanton cruelty to animals designed to appeal to a prurient interest in sex.”
In 2005, a jury convicted Robert Stevens, a Virginia pit bull breeder, for selling videos of dog fighting. Dog fighting is a federal crime and illegal in all 50 states.
But the 3rd Circuit Court of Appeals overturned that ruling on the basis of freedom of speech concerns.
The law was poorly written, Stevens’s attorney Bob Corn-Revere said, noting that the First Amendment says the government can ban illegal activities and enforce those bans but cannot create laws to prosecute the people who “write, speak and depict” those activities.
He added, “[The government] has used the vehicle of a law that is written for a fringe sexual fetish and expanded it to include anything that could conceivably be described as animal cruelty.”
Wayne Pacelle, president of the Humane Society of the United States, calls that argument ludicrous.
He claims that the law was designed to penalize people who knowingly peddle and profit from the type of videotapes Stevens sold.
“Dog fighting is a felony in every state, a federal felony,” Pacelle said.
Stevens, who was the first person convicted under the 1999 law, sold various videos on pit bulls, including how they can hunt other animals. He also reportedly sold videos of pit bulls fighting each other in Japan, where dog fighting is legal.
Pacelle and Gallegly are confident that the court will overturn the Circuit Court of Appeals decision.
Gallegly, co-chairman of the Congressional Animal Protection Caucus, points out that 26 state attorneys general have signed on to an amicus brief in support of his law.
Animal Protection Caucus Co-Chairman Rep. Jim Moran (D-Va.) is less optimistic about the outcome: “I’m not at all confident at what this court will do. Some of the members of the court are inclined to rule politically; some are more predictable; so I don’t know.”
Barr, who voted against Gallegly’s bill in 1999, said, “There’s no reason for Congress to have been involved in this.”
This will be the first animal cruelty case to be heard by the Supreme Court in over 15 years.