In a 2009 friend-of-the-court brief filed in an important Supreme Court free speech case, the National Coalition Against Censorship, joined by the College Art Association, warned that a law banning depictions of animal cruelty violates the First Amendment right to free speech and that the exemption it provides for work with “serious value” rings hollow, given the long history of censorship of disturbing or unpopular images.

In defending the law, the Obama Administration made the unlikely claim that local prosecutors and juries can be trusted with the power to decide whether certain words and images are worthy of First Amendment protection.  Even more disturbingly, the government asserted that speech rights can be limited to promote a “social interest in order and morality,” and that the Constitution only protects material with “serious social value” that serves a “higher purpose.”

At issue in U.S. v. Stevens, No. 08-769 was a 1999 federal law that made it a crime to sell, create or possess videos and other depictions of cruelty to animals for commercial use. Violators were subject to up to five years in prison for each count as well as fines.

The case arose in 2004, when 68-year-old Robert J. Stevens of Virginia was sentenced to 37 months in prison by a federal court inPennsylvania for selling videos that showed pit bulls fighting and training to hunt wild boar. Stevens was not accused of organizing dogfighting, and in a book he wrote about raising pit bills as pets and working dogs, Dogs of Velvet and Steel, he argues against the practice. Previously, the Third Circuit Court of Appeals in Philadelphia overturned Stevens’ conviction, saying both the law and its application were unconstitutional.

NCAC provided numerous examples in its brief (below) of works of art that were initially scorned but were later deemed to be groundbreaking and influential, from the Impressionist school to Marcel Duchamp to Andy Warhol. The brief also offers examples of  art works containing images of animal cruelty that are directly  threatened by this law, including Blood Orgies by Austrian artist Hermann Nitsch, in which ritualistic performances combine fake crucifixion with the disemboweling of lambs and other animals; as well as controversial work by French Algerian artist Adel Abdessemed and Belgian artist Wim Delvoye.

These and other similar artists, and anyone who buys or displays their work, would be at risk for prosecution.  Even though their work has been shown in major museums and art venues around the world, juries could still conclude that it lacks serious value.  The law invites subjective judgments about what work has “serious value” and creates a real risk that it will be used to punish the expression of ideas that are unpopular, unwelcome, or unfamiliar.

NCAC was represented in the case by Andrew E. Tauber and Craig W. Canetti of the law firm Mayer Brown LLP in Washington, DC, and Eugene Volokh, a well-known First Amendment scholar atUCLALawSchool.  The brief is available below  Other briefs and legal documents posted in the case include a broad range of amicus briefs opposing the government’s position.