Dogs, Cats, and Other People by Matthew Margolis

Members of the United States Supreme Court had no shortage of hypotheticals on hand earlier this month as they wrangled with the First Amendment and the question of whether its free speech protections extend to images of animal cruelty.

Justice Samuel Alito mused aloud, "Suppose (human sacrifice) is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay-per-view, you know, on the Human Sacrifice Channel. They have a point of view they want to express. That's OK?"

Citing the evils of Adolf Hitler, Justice Antonin Scalia asked, "Can you keep him off the screen?" Justice Ruth Bader Ginsburg brought the status of "snuff films" to the table.

The case currently before the Court questions the constitutionality of a decades-old statute passed by Congress in an effort to eradicate the market for "crush" videos and videos depicting illegal dogfighting. Crush videos star faceless women in high heels stomping on small animals for prurient appeal.

But the law is broad, extending beyond fetish videos to outlaw any audio or visual recording "in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed," if the act violates the law in the place where the recording was made, sold or possessed. The statute's text makes exceptions for works of "serious religious, political, scientific, educational, journalistic, historical or artistic value." But those terms are subjective, leaving the door open for the prohibition of unintended works, such as political videos used by animal rights groups in the fight against animal cruelty or, say, gladiator films.

In 2004, Robert Stevens of Pittsville, Va., was charged with selling videos depicting animal cruelty, a violation of interstate commerce laws.

He was sentenced to 37 months in prison and immediately appealed. The appellate court overturned his conviction on the grounds that "research and empirical evidence in the record before us simply does not support the notion that banning depictions of animal cruelty is a necessary or even particularly effective means of prosecuting underlying acts of animal cruelty."

Judging by statements thus far from the justices, it doesn't sound as though the high court is about to reinstate a poorly written law that does little to serve its purpose. If so, Stevens will return to his "Dogs of Velvet and Steel" business, unrepentant and unpunished.

But at the core of this case lies the fact that Congress, in writing this law, didn't do enough. They failed to target the inhumane acts and those who engage in them, instead focusing on the sale of depictions of such acts. Stevens received a harsher sentence for selling dogfighting videos than did Michael Vick for funding and participating in an illegal dogfighting business, for viciously killing dogs.

Why not write a law that works to criminalize this depravity and severely punish the Vicks who bankroll and popularize it, thereby making these videos possible?

Might happen.

Justice Stephen Breyer, in addressing the ambiguity of the statute's exceptions, asked, "Why not do a simpler thing? Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit."

Good idea.

Woof!

Dog trainer Matthew "Uncle Matty" Margolis is co-author of 18 books about dogs, a behaviorist, a popular radio and television guest, and host of the PBS series "WOOF! It's a Dog's Life!" Read all of Uncle Matty's columns at the Creators Syndicate website at www.creators.com, and visit him at www.unclematty.com. Send your questions to dearuncle.gazette@unclematty.com or by mail to Uncle Matty at P.O. Box 3300, Diamond Springs, CA 95619.

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