THOUGHTS ON U.S. v. Stevens
by Merritt Clifton
The U.S. Supreme Court had barely rendered the U.S. v. Stevens verdict on April 20, 2010, striking down the federal law that had prohibited interstate sales of video depictions of illegal cruelty to animals, when fellow journalists began e-mailing and calling, asking for my response to the verdict.
Of course I had to read it first. And even then, my response was & is much more complex than a sound bite.
My response, at last formulated, is subdivided into three chapters, below, with subheads to enable readers to find what most interests them.
The first chapter might be called a correction and disclaimer, lest anyone mistakenly imagine that I represent any one particular perspective on the issues. The second chapter specifically addresses U.S. v. Stevens. The third provides some little known background information, mostly previously published in ANIMAL PEOPLE, years ago, but seldom mentioned anywhere since.
CORRECTION & DISCLAIMER
As editor of ANIMAL PEOPLE since 1992, and news editor of Animals' Agenda for most of six years before that, I have long covered the animal rights movement as my full-time 24/7 job. Animals have been part of my news beat, one way or another, for more than 40 years.
I also cover the animal welfare movement, the humane movement, and the intersections of all of these with the environmental and conservation movements.
In addition, I cover animal advocacy from the Hindu, Jain, Buddhist, Confucian, and Islamic perspectives.
There are distinct differences among what each of these ten philosophical directions recognizes as the rights of animals, humans, and species. I don't purport to be a spokesperson for any of them.
Often the differences among pro-animal philosophies are obscure to people who are not actively involved in animal-related causes, and even to most people who are donors and volunteers, without being especially conversant in the intellectual underpinnings of their beliefs.
At the same time, the differences are often huge at the point of drafting and implementing public policy.
U.S. v. Stevens affords an example, since it addresses matters that have been handled very differently by the animal advocacy communities in Hindu and Confucian nations.
On a personal level, I don't disavow having certain values which are consonant with popular concepts of "animal rights."
I have recognized the rights of animals to life, liberty, and the pursuit of happiness, according to the needs and desires of their own kind, from earliest childhood. I am a lifelong second generation vegetarian, who refused to dissect animals in school more than 20 years before the first lawsuits were filed seeking to establish a right to conscientious dissent from dissection.
However, this hardly aligns me at all with the perspectives of the most visible institutions that expressly espouse an "animal rights" philosophy. Several have excluded me from their events for more than 20 years each. Some have actually fired staff for talking to me. One has for more than 10 years now distributed a rap sheet explaining their perspective that I am an alleged enemy of animal rights.
Among the more prominent "animal rights" philosophers is a gent who denounced me for pages in his most famous book, while misstating every fact.
No representatives of animal use industries have threatened to kill me as often or as gruesomely as some self-appointed spokespersons for the "Animal Liberation Front," two of whom were eventually identified. One identified herself, years later, and apologized.
Nonetheless, much of the organized "animal rights" movement does not see me as one of them, for whatever reasons.
U.S. v. Stevens
I did not take a stand on the case, one way or the other.
When the bill that led to the case first passed Congress, I was among those who anticipated that it would fail at the first legal test, for exactly the reasons that it eventually did.
The framers of the law erred quite significantly in rushing it through to passage without even consulting the many other organizations on their own side of the issue, never mind everyone else with a perspective on the legislation.
At the same time, I never saw the bill as presenting any threat whatever to my ability to report about cruelty to animals -- a topic about which I have probably done more reporting than any other person who ever lived.
The intent of Congress in passing the bill was clear, even if the language was not.
In most of the world the intent of a law is what carries the most legal weight, not the actual letter of it -- as is necessary when laws are simultaneously adopted in languages as different as Mandarin, English, and Arabic, some of which do not lend themselves to the degree of precision that is customary in U.S. & British legal boilerplate.
I have had considerable experience in defending my First Amendment rights, including in fighting a SLAPP suit for two years that appeared to be waged with the primary purpose of trying to put ANIMAL PEOPLE out of business.
I have also had the experience of fighting a SLAPP suit brought by a government agency in Quebec, where I had no First Amendment rights, and of working from time to time in nations where there was no right of freedom of speech and press at all.
I most certainly take defense of the First Amendment very seriously.
Yet I find some uses of the First Amendment highly problematic, since they make use of communications in ways that were never imagined by the people who wrote it.
For example, the use of printed or broadcast communication as the means of committing criminal fraud was barely known 200 years ago. Now the Internet may host and advance more scams every day than ever existed in previous history.
Conventional legislation against fraud is proving rather helpless against schemes that work across political boundaries. The major point of exposure for the scammers is the point of broadcast, where they are promoting a scam, rather than where they are actually collecting money.
Stopping Internet scamming may require obliging common carriers to take a great deal more responsibility for policing content than was ever practical or desirable for printed or broadcast media.
For a second example, consider the recent Supreme Court decision that lifted restraints on corporate campaign contributions. The verdict treated collective entities in the same manner as individual persons. Regardless of the wisdom of the decision, the case dealt with a situation that had few if any precedents 200 years ago.
A third case would be the Supreme Court decision rendered in 1986, as I recall, which held essentially that charities are at liberty to lie in their fundraising appeals, in the interest of protecting their freedom of speech. That just about ended any efforts of law enforcement to restrain fraud perpetrated in the guise of raising funds for charitable activity. There have been a few big prosecutions since then, but only in cases where the charitable activity really did not even exist. Charities are otherwise allowed to misrepresent their programs to the extent of sometimes raising millions for projects that they barely undertake at all.
Many other nations have very healthy nonprofit sectors without tolerating the extent of misrepresentation that has become quite routine here.
Then there is U.S. v. Stevens.
At the time that the First Amendment was framed, most of the 13 colonies already prohibited dogfighting, bear-baiting, and various other forms of egregious cruelty and neglect, albeit as part of laws meant to preserve the sanctity of the Sabbath and prevent gambling, rather than protect animals per se.
These activities were known, but only as activities that one had to attend in person to be part of. The only way one could build a business on depicting anything was to paint pictures of it.
Thus grew the first phase of the U.S. pornography industry. Then for 200 years the law and pornographers played hopscotch around the edges of the First Amendment, sometimes in cases involving serious investigative journalists' efforts to expose abuses, and sometimes ensnarling serious literary authors.
Eventually, under 50 years ago, First Amendment rights gained a definitive upper hand against efforts to suppress pornography -- but then technology introduced a new element.
Literary, artistic, and still photographic depictions of sexual activity did not require real-time victimization of the models, though certainly some occurred.
Making pornographic films and videos could be done through dramatic acting, & to some extent was and is; but beginning in the late 1960s and early 1970s, some porn entrepreneurs found it more profitable to record actual rapes and even murders of the victims. Films & videos could be made in remote places where lives were cheap, and could then be sold countless times without paying royalties to anyone.
"Snuff" movies and "chicken porn," involving small children, became lucrative branches of organized crime.
The Supreme Court responded by creating the present opening for prosecuting distributors of child porn, but the same problem exists regarding videotaped abuses of adults who don't know or are unable to defend their rights, and abuse of animals.
The money in videotaping rape and mayhem isn't in the act itself; it is in the ongoing distribution of the images. And the perps are often beyond the reach of any one nation's laws.
As U.S. law now stands, participating in a dogfight is a federal felony and a felony in 49 of the 50 states. Attending a dogfight is an offense in 48 states, as I recall. Yet it is now perfectly legal to profit from selling videotapes of a dogfight.
What that means is that dogfighters now know how to maximize their profits with relative impunity. Instead of charging admission and collecting bets, at risk that a spectator or bettor may be an undercover cop, they can just exclude everyone but themselves and videotope the proceedings. Then they can sell the tapes right out in the open.
In effect, the Supreme Court just legalized professional dogfighting. The felony laws against dogfighting mean next to nothing, since a dogfighter could in theory sell thousands of tapes of just one match, and could hold the matches outside the U.S., to further minimize the chances of getting caught.
All the nice rhetoric in the verdict and the briefs submitted to strike down the Gallegly law about the need to prevent cruelty to animals, etc., doesn't mean much of anything if this loophole is not very quickly and effectively plugged.
I would like to see some of the people who wrote the briefs on behalf of people other than dogfighters & such get to work right away with the Humane Society of the U.S., which has pledged to push new legislation, to actually put together a law that will protect First Amendment rights to their satisfaction, while cutting off the potential for dogfighters, cockfighters, and other perpetrators of depraved cruelty (such as burning cats) from making a buck out of it.
The law struck down by the Supreme Court prohibited the interstate distribution of videos or films depicting illegal cruelty to animals, IF they are without "serious religious, political, scientific, educational, journalistic, historical, or art value."
Law author Elton Gallegly's intent was to exempt hunting and fishing videos, along with everything that could be remotely construed as journalism, history, or indeed anything except the commercial sale of depictions of cruelty as a money-making product.
Gallegly at the time won the support of the substantial pro-hunting portion of Congress, and of the Clinton administration, which at the time was opening National Parks to hunting at an unprecedented pace, preliminary to Al Gore running to succeed Clinton.
Much of the humane community was concerned that the bill was introduced and passed too rapidly, before many of the concerned organizations even had much chance to review what it said.
Unlike most humane legislation, the Gallegly bill did not come about through a process of major organizations meeting and jointly developing a legislative proposal and strategy for passing it. Gallegly apparently consulted only the Doris Day Animal League, which since has been merged into the Humane Society of the U.S., and then everyone else was put into the position of having to endorse it or having no bill.
There were several other approaches toward achieving the legislative goal under discussion, but once the Gallegly bill was introduced, it flew through with almost no opposition from anywhere.
The Robert Stevens case originated when Stevens advertised the videos from which the case originated in the Sporting Dog Journal, whose publisher James Fricchione was convicted in March 2004 of six felonies and five misdemeanors for allegedly promoting dogfights. Fricchione paid the last $80,000 of his financial penalty to the Warwick Valley Humane Society in August 2009.
Stevens has claimed that he was not trying to promote dogfighting, but contextually that is a very difficult argument to make when the advertising medium was the longtime publication of record in the dogfighting field.
In truth, it is difficult to see that he was doing anything other than selling depictions of criminal activity to an audience of people interested in watching that particular criminal activity, which is driven by the participation of people who pay to watch it and bet on it.
This type of crime might still occur without a paying audience, but the existence of the paying audience certainly stimulates it. The same could be said of making crush videos, which were the actual subject of Gallegly's bill when he introduced it.
As it happens, I was involved in the investigation that brought the crush video issue to light, and can testify from direct first-hand knowledge that it closely overlapped with the production and sale of child pornography, the major exception that the Supreme Court has in the past recognized to the First Amendment.
It overlapped the production of "snuff" videos, too, in which human victims are killed, or depicted as being killed, for pornographic purposes.
The crush video traffic came to light when British Customs in mid-1997 intercepted several videos mailed by one "Jeff Vilencia" of "Squish Productions" in California.
British Customs took the videos to Martin Daly of the Royal SPCA. Daly eventually enlisted investigative help from Cassandra Brown of the London Sunday Telegraph.
Unaware of that case, then-America Online "Animals & Society" host Susan Roghair independently discovered several web sites which promoted and sold crush videos. Roghair in October 1997 sought help in doing something about the business from ANIMAL PEOPLE, PETA, AnimalTalk host Dick Weevil, and Ohio animal rights attorney Shawn Thomas, who turned out to be pursuing a parallel investigation of his own, after finding some of the same web sites.
On October 6, 1997, at Thomas' request, ANIMAL PEOPLE postponed publishing an article about crush videos to avoid jeopardizing the investigation.
Cassandra Brown in November 1997 scooped ANIMAL PEOPLE. Learning thereby of the British investigation, ANIMAL PEOPLE introduced the British and American investigators by e-mail.
Unknown to any other investigators, the Suffolk County SPCA was separately closing in on crush video producer Thomas Capriola, 30, of Islip Terrace, Long Island. Two days after Capriola was arrested in May 1998, ANIMAL PEOPLE introduced the Suffolk County SPCA investigators to Daly, Thomas, and Roghair.
Capriola in December 2000 pleaded guilty to misdemeanor cruelty to animals and fifth-degree possession of marijuana, and was sentenced to serve 280 hours of community service with three years on probation.
The original investigation brought the August 1999 arrests and eventual plea bargain convictions of "crush video" star Diane Aileen Chaffin, 35, of La Puente, California, and producer Gary Lynn Thomason, 48, of Anaheim. Each drew a year in jail and three years on probation.
Convicted in Britain were Craig Chapman, 27, Christine Besford, 26, Sarah Goode, 22, and Tharaza Smallwood, 22. Chapman was in May 2002 sentenced to serve two years in jail. The three women drew four months each. All four defendants were also fined and banned for life from keeping pets.
The cases that went to court in the U.S. were not the ones involving minors or people being killed. Those occurred abroad.
I have never seen anything about the involvement of the minors reported in U.S. media, but yes, some were involved. Four of them were instrumental in breaking up a pornography ring abroad, at tremendous personal cost.
A parallel case surfaced in China in March 2006, with a distinctly contrasting outcome.
While China has only within the past year published several variants of a draft anti-cruelty law, and is notorious for the cruelties inflicted on animals at live markets and on fur farms, horrified individual Chinese citizens responded remarkably quickly after several "crush" videos surfaced on a Chinese web site.
Web surfers rapidly identified the "actress" who stomped a kitten to death as hospital nurse Wang Jue, of northern Heilongjiang province, and posted her personal data, along with that of the videographer. Wang Jue lost her job. The producer, identified as Luobei Television cameraman Li Yuejun, wrote a published apology and self-criticism.
The state-run China Daily took the opportunity to editorially argue for the national cruelty law that has finally begun to move forward. With public opinion clearly and vociferously opposed to cruelty, State Forestry Administration director of wildlife and plant protection Zhou Rongsheng announced regulations to improve the care of animals on fur farms and prohibit live skinning.
There was no criminal prosecution, because under Chinese law at the time there was no crime to prosecute. Yet no industry emerged, either, selling thousands of similar videos, each more horrific than the last, even though there was no legal reason then why it could not have.
In the Confucian context, doing something that profoundly offends one's neighbors is sufficient to not do it. That perspective holds legal weight, regardless of whether the act is explicitly illegal.
The Hindu context is similar. Any film or video sold or otherwise shown in India must not incite ethnic or religious violence, or be made in a manner that involves cruelty to animals. The Indian constitution protects freedom of speech and press more than the laws of most nations, and especially protects the rights of minority dissent, but with a handful of exemptions which prohibit activities deemed likely to harm the whole of society.
Personally, I like the simplicity of "Congress shall make no law that abridges freedom of speech and press."
But there must be some effective means of preventing criminals from profiting through the pretense that they are exercising some sort of free speech right when they videotape and sell images of their crimes, or claim in direct mail to have done relief work after a disaster that they were never closer than half a world away from, or use the Internet to scam on a scale unimagined by the hucksters who sold immigrants the Brooklyn Bridge.
Editor, ANIMAL PEOPLE
P.O. Box 960
Clinton, WA 98236
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