By Kathy Kirby & Matthew Gibson, Wiley Rein LLP

On its face, legislation designed to prevent animal cruelty would appear non-controversial and something most anyone with even a sliver of compassion would support.  Yet last month, RTNDA joined with 13 other media organizations and urged the U.S. Supreme Court to reject a federal law that attempts to curb animal abuse by prohibiting the creation, sale, or possession of “a depiction of animal cruelty.”  

The case serves as a classic example of why First Amendment advocates must sometimes defend even the most troublesome or disturbing forms of speech.  Certainly, RTNDA is not casting its lot with those who exploit extreme and illegal acts of animal cruelty.  But it is incumbent upon us to make clear to the court that the law has the perverse effect of sheltering animal abusers by potentially curbing journalists' willingness to investigate and expose animal cruelty.
 
This 1999 law, which Congress enacted to prohibit so-called "crush" videos--a class of fetish pornography involving the death of animals, served as the basis for the criminal prosecution of Robert Stevens, the producer of several videos about pit bulls.  According to federal prosecutors, Stevens' videos "contain scenes of savage and bloody dog fights, as well as gruesome footage of pit bulls viciously attacking other animals." 

Stevens, on the other hand, contends that his videos served the educational purpose of providing instruction on the proper training and care for pit bulls. A federal jury convicted Stevens on all three counts of creating, selling, and possessing depictions of animal cruelty. Stevens appealed, and the U.S. Court of Appeals for the Third Circuit, sitting en banc  vacated Stevens' conviction.  The prosecution appealed the Third Circuit's decision, and the Supreme Court agreed to hear the case. 
 
Based on the papers filed with the Supreme Court, it appears that all parties, including Stevens, profess to agree on one thing: torturing of animals is wrong.  They diverge on whether there can be any value in depicting animal cruelty.  RTNDA joined the media organizations' brief in order to protect journalists' First Amendment rights to investigate and report on newsworthy issues, including animal cruelty. 
 
The news media have a long history of exposing animal cruelty. Journalists have turned the public's critical eye to practices, such as the treatment of our food stock, the cruelties of puppy mills, and the inhumanity of blood sports such as bull-, dog- and cockfighting.  By covering these often graphic and disturbing topics, journalists have sparked public policy debates leading to new animal-protective laws and, in some cases, criminal prosecutions that have placed animal abusers behind bars. 
 
Yet, the federal law at issue in Stevens dilutes journalists' ability to shine a light on what is often a sheltered or underground practice. Although the statute contains an exception for depictions of “serious . . . journalistic value,” aside from creating a subjective test of whether a work constitutes "serious" journalism that is shielded from prosecution, the criminal statute's exception does not require courts to perform a contextual analysis of the work. 

Instead, it permits prosecutors and courts to focus on discrete portions of allegedly prohibited depictions of animal cruelty.  Thus, a court or a jury could focus on a short video clip of a savage dog fight without considering that the clip was a part of an undercover investigation that ultimately resulted in the conviction of members of a dog fighting ring. The media amici also voiced concern that the law could be read to prohibit the possession of source material that contains depictions of animal cruelty.
 
Arguments in Stevens are set for October 6, 2009.