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Abuse of Life and Language

dog fighting and the role of government

This is Dark Cloud on Wednesday, October 07, 2009.

I grew up with dogs. Mine was a rather large extended family, and everyone had a dog, generally a medium size breed, like Labradors and Boxers and Setters. All of them were goofy, happy, kid-oriented animals, and if you entered a house for the first time as a young child, you were acclimated to seek out and pet the inevitable beast soon approaching with a chew toy, head back, jaw down, and the facial expression we instinctively knew as a toddler was a dog’s smile. Dog fights or growling contests did happen and the first ones were terrifying because both animals were bigger than you. But we soon learned that dogs fight for status, not death, not damage beyond that which is necessary. Dogs are social, and their enjoyment in each others’ company was always clear. Most dogs in our clique were neutered, and this was a benefit.

With that as a background, you won’t be surprised to learn that dog fighting ranks just above those who shake infants to death because they inexplicably cry a lot in my imagined and deepest hell. It’s unnatural for dogs to fight to the death, despite the claims from dog fight aficionados that they only do what’s natural.

Although dog fighting is illegal in the United States, there is money to be made in videotaping them and selling them. A great deal of money. Robert Stevens ran something called "Dogs of Velvet and Steel," which sold videos of dog fighting and advertised in a "Sporting Dog Journal," an underground magazine on this activity. Stevens was convicted in 2004 for violating interstate commerce laws by selling depictions of animal cruelty and was sentenced to 37 months in prison. Stevens’ prosecution was the first to go to trial under a 1999 law prohibiting profit from the torture and abuse of animals. In his appeal, Stevens said it was longer than the 14 months given professional football player Michael Vick, who actually ran an illegal dogfighting ring, while all that’s claimed for Stevens is that he possessed and sold videos. Right away, it became a case about free speech vs. animal cruelty.

The appeals court ruled 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," which was what the government was claiming. It’s been pointed out that this law makes illegal mere films on bullfighting – a national but dying sport in Spain - or cockfighting – decided abuse but highly popular worldwide - or muckraking documentaries on hunting, pate de foie gras, and the slaughterhouse. It could also even be judged to preclude classic novels, like Hemingway’s, because he can be argued to have profited from the depiction of animal abuse. None of that was behind the law’s intent, but it doesn’t matter.

This was immediately landed on by spanking new Justice Sonia Sotomayor and Chief Justice Roberts both, who pointed out that it was a political decision as to whether a PETA video – one that graphically showed the carnage in order to raise money to combat dog fighting - was different from those who just wanted to profit from selling similar tapes. The government claims that the law was narrowly targeted and listed exceptions for "religious, political, scientific, educational, journalistic, historical, or artistic value.” But then, Justice Ginsburg recalled for the court a 1986 case, American Booksellers v. Hudnut. At that time, the Supremes ruled a statute allowing lawsuits against those who created "depictions of women as sexual objects enjoying pain and humiliation and degradation" was unconstitutional, because it violated the First Amendment protection of free speech. So far, there has been only one issue of the Court finding a form of speech undeserving of First Amendment protection, which is child pornography. The law under which Stevens was charged is deservedly doomed.

But, it’s distressing that both liberals and conservatives nodded sagely when Justice Scalia said “It's not up to the government to decide what are people's worst instincts. If the First Amendment means anything, that's what it means." Really? That’s exactly what’s up to the government regardless of the First Amendment. What do you think an instinct is,by the way? Law was created to suppress our worst violent instincts, and government made a list for ease of enforcement: murder, mayhem, abuse of animals. We know there is a straight line between tolerated animal abuse in children and adult murder.

It was a badly written law, but accepting badly stated explanations for overturning it makes it far, far worse.