Which of these images would also be illegal if a 1999 law, heard on October 6, 2009 by the US Supreme Court, were to be upheld? Remember – we are talking about images, not the acts themselves.

video from circus companies showing workers hooking elephants and striking tigers;

footage from factory farms where farmers are beating sick turkeys to death and cutting off baby pigs’ ears and tails;

video clips of domestic animals killed by a blow from a sledgehammer;

images of bullfighting in Spain;

a video of a stiletto heel crushing a bug.

The law criminalizes the creation; sale and possession of depictions of animal cruelty where the acts depicted are illegal, no matter where and when the images were taken: for instance, the law would criminalize video documentation of a mongoose and a cobra fight in India, if sold in the U.S. where acts of animal cruelty are illegal.

When originally enacted, the law targeted so-called “crush videos,” in which women in high heels step on little animals to satisfy a rare sexual fetish. However, it would potentially criminalize most of the above depictions, which are drawn from animal rights activist videos, art installations, and documentaries. Ironically, the only one that would be entirely safe from criminal prosecution is the last one, a classic crush video, but one that involves an invertebrate unprotected by the animal cruelty laws. No matter how well intentioned the ban on depictions of animal cruelty may be, it is much more likely to chill artistic expression and documentary images than reduce demand for crush videos.

Supporters of the law point out that it contains an exception for material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic” value. But what is serious value and who is to judge?

The first two examples mentioned above are of PETA videos that have the purpose of exposing cruelty to animals. Certain that the serious value of such images is indisputable, animal rights activists are staunch supporters of the law. But what if these images are shown in an exhibition hall without the context of the PETA website which makes clear their purpose – similarly to the video clips of animals killed by a sledgehammer which form part of an art installation by French-Algerian artist Adel Abdessemed? Can we trust prosecutors to recognize the serious value of such images then?

The ambiguity of intent rears its head here as it frequently does in censorship prosecutions. Even PETA videos can be found to revel a little too much in their representation of animal cruelty and a jury may decide that they have crossed the line. And what of artwork that does not wear its intent on its sleeve – how would its value be determined? A lot of the work of the historical avant-gardes was not even recognized as art when it was first created. Can we trust a jury to impose criminal charges on images whose intent is ambiguous and whose artistic value is contested? And would a gallery ever take the risk of showing such work, when it would face potential criminal charges?

The specific heard in the Supreme Court this week concerns a 68-year old pit bull enthusiast convicted of selling videos of pit bull dogfights. He had neither organized the dogfights nor produced the footage he was distributing. The videos were made in Japan where dogfights are legal. Nevertheless, Robert Stevens, who had no previous criminal record, was sentenced to thirty-seven months of imprisonment. In 2008 an appeals court overturned the conviction and invalidated the ban on the sale and possession of such films on First Amendment grounds.

The depictions of animal cruelty law opens a wide door for prosecuting art and documentary material while doing little to reduce the demand for crush videos. For all the strong feelings such images provoke, we need to remember, it is stomach-churning images that make us even aware of worldwide practices of animal cruelty – removing images from view will not make such practices go away. Nor will it deal with the hypocrisy of condemning images while contentedly chewing on chicken that has never spread its wings as we listen to the latest explanation as to how water boarding is not torture… Though, of course, there is no law against the depiction of cruelty to humans.

A full transcript of the argument can be found here.

Visit here, here and here for NCAC’s response to the case.

For more information, visit:

SCOTUS blog “Analysis: Animal cruelty law in trouble”
The First Amendment Center “Court seems hostile to law against animal-cruelty depictions”
The Reporters Committee for Freedom of the Press “Justices hostile to ban on animal cruelty images”
NPR “High Court Weighs Arguments In Dogfighting Case”
The Washington Post “Court Wary of Ban On Cruelty Videos”
SignOn San Diego “Visual media await ruling on animal cruelty”
USA Today “High court tackles animal-abuse tapes as free speech test”
The New York Times “Court Hears Free-Speech Case on Dogfight Videos”
Pittsburgh Tribune Review “Free speech at heart of Supreme Court dogfighting video case”