On Tuesday, October 6, the United States Supreme Court heard oral arguments in United States v. Stevens. Although not an equine law case specifically, Stevens raises an important question that affects everyone concerned about animals: what should happen when animal welfare concerns come into direct conflict with the United States Constitution?

The issue presented in Stevens is a simple one: Dog fighting is against the law in all 50 states and the District of Columbia, so it stands to reason that selling videotapes of illegal dog fights also should be illegal.

Or does it? Congress and the federal government certainly think so.

In 1999, Title 18, Section 48, of the United States Code was created to make it illegal for a person to knowingly create, sell, or possess any "depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain." Drafted as a response to so-called "crush videos" in which women wearing high heels crushed to death small animals, the law paints with a broad brush, covering any visual or audio depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" if the conduct is illegal under Federal or state law. There are exceptions if the depiction has "serious religious, political, scientific, educational, journalistic, historical, or artistic value."

So far, no one has been prosecuted for producing a "crush video." The market for such fetish videos largely vanished, and in that regard, the law must be judged a success. In 2005, however, Robert Stevens was convicted and sentenced to 37 months in federal prison for selling through the United States mail three films showing dog fights. Segments of the films included graphic shots of a pit bull attacking a pig and pit bulls fighting each other. The latter was filmed in Japan, where dog fighting is legal. Stevens claimed the films were educational because they demonstrated how pit bulls should be trained to hunt.

After losing his case in the United States District Court for the Western District of Pennsylvania, Stevens appealed to the Third Circuit Court of Appeals. The appellate court reversed the conviction on the ground that the videotapes were protected by the First Amendment to the United States Constitution, which guarantees that "Congress shall make no law . . . abridging the freedom of speech." When the Supreme Court decided to hear the case, it marked the first time since 1993 that the Court agreed to consider animal cruelty. That year the Court struck down several Hialeah, Florida city ordinances that prohibited practitioners of Santeria from sacrificing animals as part of religious services. Basis for that decision was another clause of the First Amendment, the Free Exercise Clause guaranteeing freedom of religion.

The case has garnered significant attention among the animal welfare and free speech communities. The Humane Society of the United States and several other animal rights and welfare groups filed amicus curiae ("friend of the court") briefs in support of the law; publishers, journalists, broadcasters, and hunting and shooting organizations filed briefs in support of Stevens and the First Amendment.

Oral arguments mirrored the briefs filed by the parties.

Neal Katyal, Deputy Solicitor General of the United States, argued in favor of the law, saying that the videos were not protected speech, in part because the First Amendment protections are not absolute and that the harm far outweighed any value the videos might have. Comparisons have been made to child pornography, a class of speech that does not enjoy First Amendment protection. This argument was rejected by the Third Circuit Court of Appeals, which found no compelling government interest in preventing animal cruelty by punishing speech.

Attorneys for Stevens said that both the government and Stevens were opposed to dog fighting. They argued that balancing harm against value was inappropriate, and that the dog fighting videos were controversial, not illegal, and were protected by the First Amendment.

The Court has several options, among them striking down the law entirely on First Amendment grounds, limiting its application to "crush videos," or affirming Stevens’ conviction. A decision in United States v. Stevens will be rendered in a few months.