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Today the US Supreme Court ruled that images of animal cruelty are expressions of free speech and that those who profit from such depictions can hide behind the First Amendment of the Constitution. It’s an unfortunate decision by the nation’s highest court, and it’s a tragedy for the animals who will suffer the consequences.

The ruling centered on the case of Virginia resident Robert Stevens, who was convicted of animal cruelty four years ago after he sold videos depicting dogfights and so-called “hog-dog fighting,” including graphic footage of a pit bull mutilating the lower jaw of a live pig. He also provided voiceover narration on each video and even marketed the videos in underground dogfighting magazines. Authorities charged Stevens with violating a 1999 law that prohibits the creation, sale or possession of depictions of animal cruelty if the offender intends to place such depictions into interstate commerce for commercial gain. Stevens’ lawyers argued that he is actually against dogfighting.

Stevens was sentenced to 37 months in prison, but the United States Court of Appeals for the Third Circuit threw out his conviction and struck down the law in 2008, saying it violated the constitutional right to free speech. The Supreme Court has declared that speech can be restricted when the government has a compelling reason to do so; child pornography, for example, is not protected by the First Amendment. But in its decision, the appeals court stated that the government did not have a “compelling interest” in limiting scenes of cruelty to animals and said that “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.” Last April, the high court agreed to a request by the United States Solicitor General, Elena Kagan, to review the appeals court decision.

The decade-old law Stevens violated — the federal Depiction of Animal Cruelty Act ― was intended to ban so-called “crush” videos, which depict puppies, kittens and other small animals being tortured and crushed to death, typically beneath the spiked heel of a woman’s shoe. These highly disturbing videos appeal to equally disturbed humans, who derive sexual pleasure from watching defenseless animals writhing and squealing in pain. According to the Humane Society of the United States (HSUS), before the law was enacted, there were about 2,000 crush videos available in the marketplace, selling for $15 to $300 each. Over the last 10 years, the market for such animal snuff films had all but vanished. After the Stevens conviction was reversed in 2008, however, sales of crush videos online made a comeback. One can reasonably speculate that the peddlers of these twisted videos will now be getting even richer.

Of course, most observers predicted how this case would turn out from the very day the Supreme Court heard oral arguments and appeared to believe the 1999 law was overbroad. On October 6, 2009, Justice Antonin Scalia, known to be an avid hunter, said that the court needed to consider “the right of people who like cockfighting, who like dogfighting and who like bullfighting to present their side of the debate” just as passionately as the critics of these cruel activities. “What if I am an aficionado of bullfights,” Scalia added, “and I think ― contrary to the animal cruelty people — they ennoble both beast and man, and I want to persuade people that we should have them? I would not be able to market videos showing people how exciting a bullfight is.” His comments were widely reported, and you could almost hear the collective “WTF?” from the animal rights community. We could see the writing on the blood-stained wall.

In addition to his legal team, Stevens was supported by some of the brand names of animal exploitation, including the National Rifle Association, the National Shooting Sports Foundation and Safari Club International. These special-interest groups have a powerful presence and deep pockets.

Only Justice Samuel Alito dissented in the case, observing that the harm animals suffer in dogfights was enough to sustain the law. He also singled out crush videos and noted that “The animals used in crush videos are living creatures that [sic] experience excruciating pain.” In his dissent of the Court’s opinion, Alito refers to the 1999 law that has now been declared unconstitutional, writing that “Congress was presented with compelling evidence that the only way of preventing these crimes was to target the sale of the videos. Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue.” The courts, Alito noted, have “erred in second-guessing the legislative judgment about the importance of preventing cruelty to animals.”

Chief Justice John Roberts suggested that if Congress passes a law explicitly banning crush videos, it might be constitutional, since it would be narrowly focused on a specific type of commercial enterprise. That is precisely what animal protectionists will be now pushing for. “The Supreme Court’s decision gives us a clear pathway to enact a narrower ban on the sale of videos depicting malicious acts of cruelty, including animal crush videos and dogfighting,” says Wayne Pacelle, president and CEO of HSUS. “Congress should act swiftly to make sure the First Amendment is not used as a shield for those committing barbaric acts of cruelty, and then peddling their videos on the Internet.”

Though I know advocates will continue to fight on behalf of animals and will likely introduce new legislation to combat these videos, it is lamentable that our nation’s highest court has, for the moment, silenced those trying to speak for victims who have no voice.

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