HERE

“4/21/2010, 2:43pm EST”

A Supreme failure, and a victory for animal torturers

Back in October, we ran a post about a case before the Supreme Court which tested a 1999 law criminalizing the sale of videos featuring cruelty to animals. Robert Stevens, former proprietor of “Dogs of Velvet and Steel,” a business selling animal fighting videos, was the appellant.

In that October post, we particularly narrowed in on “Justice” Scalia’s errant thinking during the proceedings, and offered up this analysis:

To Scalia it’s just a free speech case — with only humans granted a “voice”, even in the abstract — not at all related to disabling psychos who already make money under the radar from gambling on illegal animal cruelty but want to be able to sell videos of the shit too. And [to Scalia] it isn’t the government’s role to decide what people should do and shouldn’t do — never mind that government does that all the time, and if it didn’t, Scalia would be shaking in his fat boots.

The most pathetic part is that Scalia’s myopic douchebaggery reflects an extreme imbalance in our culture and legal system in which human fancy is usually privileged over the very lives and livelihoods of any- and everything else.

Today, there is terrible news. Robert Stevens, animal torture profiteer, won his case (h/t Adam B at DailyKos). The Supreme Court has struck down law 18 USC § 48 (full decision here), which read:

(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)(1) Definitions. — In this section 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.

Only one Justice — Samuel Alito, certainly not the likeliest character — stood up for a law that clearly respects traditionally protected speech while dis-incentivizing discretionary, unquestionably evil acts. You see, if Robert Stevens, animal torture profiteer, wants to advocate for the torture of other animals; if he wants to advocate for legalizing commercial production of videos depicting animal torture; he has always been perfectly entitled to do that. Law 18 USC § 48, on the other hand, criminalized a violent commercial activity, which laws do all the freaking time.

The crux of the majority’s rationale for striking down the law provides the very reason why they should have upheld it:

When we have identified categories of speech as fully outside the  protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. In Ferber, for example, we classified child pornography as such a category. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this “balance of competing interests” alone. We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.”  As we noted, “‘[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.’”

Prohibiting commercial sale of animal torture videos directly impacts the market for the depicted activity itself, just as it does with child pornography. The Court’s rationale for outlawing both commercial and non-commercial distribution of child pornography applies at least as well to the commercial distribution of animal torture videos.

This bald oversight is incomprehensible, and yet eight Supreme Court Justices have utterly failed to uphold justice this day. I leave you with the description of one of the videos considered by the Court — a so-called “crush video,” a fucking fetish video that helps truly evil people get their rocks off:

A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.

There are no words.

—Dan

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