FKSA Files Pro Bono Amicus Brief in U.S. Supreme Court Case on Animal Cruelty Videos

On June 10, 2009, FKSA filed an amicus curiae brief in the United States Supreme Court on behalf of its pro bono client International Society for Animal Rights ("ISAR") in United States v. Stevens. The case arises under 18 U.S.C. 48 ("Section 48"), a criminal statute that prohibits the creation, selling, or possession of a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain. The impetus for the passage of Section 48 was so-called "crush videos." Robert J. Stevens was convicted under Section 48 for selling videos of illegal dog fighting. The Court of Appeals for the Third Circuit, sua sponte sitting en banc, reversed Stevens' conviction on First Amendment grounds. See United States v. Stevens, 533 F.3d 218 (3d Cir. 2008). The Supreme Court granted certiorari, and oral argument is expected to be held in November 2009.

ISAR's amicus curiae brief argues that Stevens' sale of the videos of illegal animal cruelty was unprotected conduct, not speech; that if Stevens' activity was speech, it was commercial speech, and the illegality of the dog fighting depicted in Stevens' videos places it beyond First Amendment protection; that if Stevens' activity did not constitute commercial speech, the factors enunciated by the Supreme Court in New York v. Ferber, 458 U.S. 747 (1982), which upheld the criminalization of child pornography, show that the speech reached by Section 48 is not protected by the First Amendment; and, Ferber aside, the "speech" reached by Section 48 - depictions of acts of animal cruelty outlawed in all 50 states - is at the nadir of human expression, forms no part of the marketplace of ideas, and, as such, is not protected by the First Amendment.

FKSA attorneys Lance J. Gotko and Andrew S. Pak authored the brief with co-counsel Henry Mark Holzer, Professor Emeritus, Brooklyn Law School.
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