Posted On: April 27, 2009

United States Supreme Court to Decide Whether Videos of Dog Figting, Other Forms of Animal Cruelty, Are Protected by the First Amendment's Right of Free Speech

In Philadelphia last year, a Federal Appeals Court declared a rarely used law prohibiting the sale or possession of photos or videos of animals being maimed, mutilated, tortured, wounded, or killed, unconstitutional on First Amendment grounds. The Federal law which was passed over a decade ago, was enacted to combat a growing underground trade involving videos which portray dog fights or the mauling of other animals. The law was not intended to specifically target animal cruelty, as all fifty states have enacted their own legislation against such, and also included an exception for religious, scientific, or artistic valued depictions.

Last year’s ruling held Congress’s law unconstitutional, however, stating that the protections of Free Speech include depictions of illegal activity, with few exceptions; one of those exceptions being that of child pornography. Although the Court alluded to these exceptions, it refused to create a specific category of exceptions to the First Amendment’s protections.

According to the Baltimore Sun, the Appeals Court’s ruling effectively overturned the conviction of a Virginia man sentenced to three (3) years for the sale of several videos portraying pit bull fights and the mauling of other animals by the pit bulls. One video portrayed a pit bull ripping-off the jaw of a pig. The man had advertised his videos in an underground magazine which, according to the Federal Government, reports on illegal dog fights. He was arrested in 2003 in Pittsburgh, Pennsylvania, following the sale of one such video to Federal agents, and was subsequently charged and convicted under the currently unconstitutional law.

Government attorneys have appealed the Appeals Court’s ruling, citing that “Graphic depictions of torture and maiming of animals...have little or no expressive content or redeeming societal value, and Congress has compelling reasons for prohibiting them.” Courts have long held that the Constitution’s First Amendment right to free speech does not necessarily apply in situations where the content of such speech is construed as obscene (generally sexual in nature) or if such content is likely to incite violence. Even these categories of speech, however, must meet specific elements before being characterized as unprotected speech. The Appeals Court, in their decision, held that the content prohibited by the congressional legislation did not qualify as unprotected speech and therefore the legislation is unconstitutional. The Supreme Court of the United States has elected to hear the issue later this fall.

It is important to recognize that not all speech is protected by the First Amendment’s right to free speech and further, that there are many different forms of speech including video portrayal. If you have been arrested and/or charged with violating a State or Federal statute regarding unprotected speech, or feel that you soon may be, it is imperative that you contact an experienced Criminal Defense Attorney immediately. It is possible that the charges against you may infringe upon your constitutional right to the freedom of speech. For a confidential consultation, please contact the Law Offices of Marc Neff at 215-563-9800 or via email at marc@nefflawoffices.com.