The Supreme Court heard oral arguments yesterday in the case United States v. Stevens about U.S. Code 18 § 48 which makes the creation or possession of some depictions of animal cruelty a felony. The story has everything it needs for mass appeal: puppies, death, sex, and the first amendment. Naturally it has enjoyed a lot of attention from the press.

Links

• Transcript of oral arguments [PDF]
• Free Speech Battle Arises From Dog Fighting Videos – NY Times
• Wayne Pacelle, president and CEO of The Humane Society of the United States arguing for the law
• Supreme Court Debates Crush Videos – LA Times

I won't bore you with a lengthy armchair legal analysis. Instead I just want to tell you to strongly consider firing your congressional representatives in your next national election. While they seem to be experts at the stump speech, the mea cupla, and Sunday morning talk shows, they can be dreadful at doing the one thing we ask of them: legislating. It's a real shame too, because the idea behind this law, that Congress can regulate the trafficking of crush videos, is sound, and since the videos seemed to have created a market for animal cruelty that would not exist without them, one might even say a law is necessary. But not this law.

In his first sentence arguing the case for the government, Neal Katyal, Deputy Solicitor General, says,

Congress crafted a narrowly targeted restriction against certain depictions of actual animal cruelty.

That sounds good, but here's the text of the law:

48. Depiction of animal cruelty
(a) Creation, Sale, or Possession.— 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.

(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) Definitions.— In this section—
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct 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; and
(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

Narrowly crafted? A straight reading of this statute would indicate my photo above would be a felony to posses or sell in any state where this hunt was not legal. Depictions of out of season hunting would be a felony. Bullfighting photos? Felony. Fishing show depicting the use of a treble hook in a market where only a single is allowed? Felony. I don't really care for hunting, but I would never suggest that this photo represents animal cruelty in the way a crush video does and while this elk hunt was perfectly legal, I have no way of checking local regulations in every market that may see the photo. Cruelty in this legislation is defined, among other things, as the intentional killing of an animal if it's illegal either where the animal was killed or where the photo is possessed or sold. There is absolutely nothing narrowly-crafted about this whimsical string of generalities. And the exceptions are equally nebulous. My advice to Congress is if you are about to write a sentence like, does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value, you should strongly reconsider your approach—you are probably doing it wrong. We shouldn't burden prosecutors, police, and judges with contemplating what is or is not serious art. I'm weary of hearing members of Congress complaining about activist judges legislating from the bench while they write flimsy legislation that is all but meaningless without a court's interpretation. Congress's original intent as described in their committee reports was to narrowly target crush videos. Bill Clinton, when he signed the bill, said in the signing statement:

I will broadly construe the Act's exception and will interpret it to require a determination of the value of the depiction as part of a work or communication, taken as a whole. So construed, the Act would prohibit the types of depictions, described in the statute's legislative history, of wanton cruelty to animals designed to appeal to a prurient interest in sex.

Yet here we are before the Supreme Court, not with a case involving prurient interest in sex or crush videos (of which there have been no prosecutions), but rather a case concerning dog fights. The government's argument that this is narrow, specifically targeted legislation should be viewed with extreme skepticism.

Patricia Millett, arguing for Stevens, imagines offering legal counsel based on this law:

Ms. Millett: If I got a call from the general counsel of Outdoor Channel or someone making hunting videos and they said, "Does this fall within this statute," I wouldn't have to come up with a strained factual scenario. I would say yeah, it falls squarely in, subject to a prosecutor or jury anywhere where you market in this country, deciding that it has serious—one of the adjectives—value. I would have to say that to that person, and that would be accurate legal advice.

and the court wonders:

Justice Breyer: why not do a simpler thing? Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit. Now, that can be done. I don't know why they couldn't do it.

Neither do I and it frightens me to contemplate a large, vaguely defined class of photography becoming a federal felony if the court upholds this law.

In other news, this year's SCOTUS Halloween party is looking up:

Justice Scalia: If you dress up like an ancient Roman, the whole thing is of historical interest?

•••

Justice Alito: I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel. (Laughter. )