Cultural policy USA

The arguments for Section 48

The law will not inhibit freedom of expression, only cruelty to animals

This October, when the US Supreme Court hears the case of US v Stevens, the Justices will examine the constitutionality of a 1999 law banning the commercial sale of videos depicting extreme and illegal acts of animal cruelty. The federal Depiction of Animal Cruelty law, which Congress passed by an overwhelming margin, was prompted in part by a Humane Society of the United States (HSUS) investigation that uncovered an underground subculture of “animal crush” videos, in which scantily clad women, often in high-heeled shoes, impale and crush to death puppies, kittens and other small animals, catering to those with a sexual fetish for this aberrant behaviour. The production of each of these “crush” videos requires the perpetration of illegal acts of malicious animal cruelty, and causes untold suffering to the animals used to make them. By removing the profit incentive for producing these videos, the federal Depiction of Animal Cruelty law had an immediate and sweeping impact on this sadistic industry, as the purveyors of crush videos fled the business and the market for their product collapsed. This effective law was also used to arrest several people involved in the distribution of videos of dog fighting, which is a felony offence in all 50 states and a federal felony as well.

Robert Stevens, the defendant in the case pending before the Supreme Court, was among those arrested for the distribution of dog-fighting videos, as well as for videos depicting dogs brutally attacking domestic and feral pigs. A federal jury convicted Stevens of violations of the Depiction of Animal Cruelty Act in 2005. However, last year, the US Court of Appeals for the Third Circuit ruled that the law was unconstitutional, deciding that preventing animal cruelty is not a compelling state interest and the statute violated the First Amendment. In response to the law being struck down, crush videos—like a bacterial infection responding to the withdrawal of an antibiotic—have surfaced again and spread. Since the Supreme Court agreed earlier this year to hear the Stevens case, there has been vigorous public debate, including in the art world, over the constitutionality of the Depiction of Animal Cruelty law. Some in the art community, as well as journalists and others who hold the First Amendment dear, have raised concerns that the law amounts to censorship of artistic or journalistic expression related to cruelty to animals. This concern is misguided. In reality, the law is narrowly drawn to prohibit only those depictions of cruelty to animals in which (a) the underlying cruelty is unlawful, and (b) the depiction itself has no redeeming political, social, journalistic, historical or artistic value. Indeed, there is an exemption written directly into the statute that exempts depictions with artistic value. The law also criminalises only depictions sold in interstate commerce for commercial gain.

As the HSUS argued in a brief filed with the Supreme Court, the test for whether a depiction is prohibited under the statute is essentially the same as the test for stopping the production and sale of certain forms of human obscenity, and artists and journalists face no more threat from the Depictions of Cruelty Act than they now face under existing obscenity doctrines. The HSUS’s position in the case is guided by the simple principle that there is no reason that videos depicting actual animal cruelty should get more First Amendment protection than pornography does. The makers and sellers of videos strictly showing malicious acts of cruelty to animals, as with videos depicting child pornography, are not making an argument or expressing a viewpoint—they are simply profiting from extreme cruelty, from predation on the weakest among us. This is a far cry from the values that the First Amendment is supposed to protect. We wouldn’t allow people to sell videos of actual child abuse or rape for profit, and the same legal principles are at hand with malicious acts of cruelty to animals, which are illegal in all states and a felony in almost all.

Most artists, like most other Americans, have zero tolerance for malicious acts of animal cruelty. The federal Depiction of Animal Cruelty law is not intended to, and indeed does not, target any legitimate form of artistic expression. Instead, it targets sadistic and illegal acts of cruelty that, left unchecked, will flourish and continue to subject thousands of defenceless animals to torture and misery.

The writer is the president and chief executive of the Humane Society of the United States

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