U.S.| Profile: Sonia Sotomayor’s debut

posted on 01.05.2010 by

Lauren Collins writes in “Number Nine”, in the 11 Jan 2010 issue of the New Yorker: On October 6th, at 10 A.M., Neal Katyal, an attorney for the Department of Justice, rose in front of the Supreme Court to argue the government’s position in the matter of United States v. Stevens. Standing at a mahogany lectern, surrounded by marble friezes of lawgivers—Draco, Hammurabi, Marshall—Katyal began his address, which, he announced, would amount to a four-pronged defense of Section 48 of Title 18 of the federal criminal code. The law, which Congress passed in 1999, had been intended to restrict certain depictions of animal cruelty. Chief among them were “crush videos,” in which small animals such as guinea pigs, kittens, hamsters, birds, and mice are taped or tied to the floor and—as a congressional report put it—stomped to “a bloody mass of fur” by women, often wearing spike heels, who “can be heard talking to the animals in a kind of dominatrix patter” (“What’s wrong, little man? Are you scared?”). The acts shown in the videos—“The Tales of Charlie’s Ankles,” “Smush”—were already illegal, but prosecutors had found it nearly impossible to identify the participants in the videos, and thus to enforce the existing laws. Congress responded by targeting the images, making it illegal, with some artistic and educational exceptions, to “knowingly create, sell, or possess . . . for commercial gain . . . any visual or auditory depiction . . . in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.”

The law went unenforced until January, 2003, when Robert J. Stevens was arrested at his home, in Pittsville, Virginia. Stevens owned a business called Dogs of Velvet and Steel, and operated a Web site, pitbulllife.com, through which he sold dog-training paraphernalia and documentary films about pit bulls. Three of the films incorporated footage of dogs fighting. The government did not allege that Stevens had anything to do with staging or filming the fights. But, under Section 48, a jury found that his production and distribution of the films was criminal, and sentenced him to thirty-seven months in prison. An appeals court overturned the verdict.

The Stevens matter, having reached the Supreme Court, was shaping up to be one of the biggest cases of the term. In briefs, the government, along with animal-rights groups, asserted that depictions of animal cruelty were of such grievous harm to society that they—like depictions of child pornography, which the Court had prohibited with its decision in New York v. Ferber (1982)—were not shielded by the Constitution. Stevens’s lawyers, joined by an unlikely alliance of gun advocates and civil-liberties organizations, argued that the law infringed upon “a broad swath of never-before-regulated speech.” The case was a First Amendment depth bomb. If the Court upheld the statute, it would create a new category of unprotected expression for the first time in twenty-seven years. [...]

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