Kathleen Parker: High Court use common sense with "crush" videos
WASHINGTON — Some things are too horrific to consider, and yet consider them we must.
"Crush videos," for instance.
Somehow I missed the 1999 law, recently nullified by the U.S. Supreme Court, that attempted to outlaw crush videos — definition forthcoming pending recovery from horror-induced swoon. Thus, for the past 11 years, I have been blissfully ignorant of a level of depravity I haven't the imagination to invent.
No children beyond this point:
Crush videos feature small animals (kittens, puppies and others) being slowly crushed or impaled by a woman wearing stiletto heels, ostensibly for the sexual pleasure of those so attracted.
And yes, the Supreme Court decided that such videos are protected by free speech. Or rather, that the law prohibiting such videos was too broad. As written, for example, the law could be construed to prohibit a deer-hunting video, which, though some might find cruel, relates to a legal activity.
Obviously, no one ever intended that the free speech provision of the Constitution protect the rights of deviants to torture animals and then to market videos for the sexual satisfaction of people who, by their tastes, are a probable threat to society.
The case in question stemmed from the 2005 conviction of Robert J. Stevens of Pittsville, Va., who was charged with marketing videos of dog fighting. Stevens, who identifies himself as a journalist and documentary filmmaker (who doesn't these days?), claimed that he was merely trying to provide a historical perspective of dog fighting. Some of the images included pit bulls tearing at the jaw of a domestic pig.
Some things transcend "to each his own," and animal cruelty is one. Dog fighting, in fact, is illegal in all 50 states. But whether the filming of dog fighting is criminal isn't always clear. Animal rights organizations provide videos of cruelty, after all, though the difference should be obvious. One is reporting on cruelty; the other is setting up an event for the sole purpose of profiting from cruelty.
Although the federal government never prosecuted anyone for making crush videos — the market shriveled significantly after Congress passed the 1999 legislation -- prosecutors used the law to convict Stevens, who was sentenced to 37 months in prison. Alas, an appellate court ruled that Stevens' conviction violated his free speech rights and the Supreme Court upheld the ruling.
The high court noted that dog fighting remains illegal, but that there was no compelling reason to create a special category of exemption from First Amendment protections, as is the case with child pornography. The court's reasoning was that child porn necessarily means the abuse of children in the production of such films.
This is logic that escapes the layman, burdened as he is with common sense. Aren't animals necessarily harmed in the creation of crush videos and in the course of filming dogfights? The natural question follows: How can an act be illegal, but the filming and marketing of the illegal act be legal?
In law, it seems, the answer is never simple. These things are not open and shut, but are "a matter of grappling," as PETA President Ingrid Newkirk put it to me during an interview of shared despair.
At least one justice, Samuel Alito, applied the common sense standard in his dissent.
"The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos."
In effect, the high court has revived the crush video industry, if only for a short time. A day after the ruling, Reps. Elton Gallegly, R-Calif., and Jim Moran, D-Va., co-chairs of the Animal Protection Caucus, introduced a bipartisan bill (H.R. 5092) to narrowly focus the 1999 bill to deal with crush videos.
Even this new bill may be imperfect, however. Although it specifically exempts hunting videos, animal rights advocates worry that it leaves a loophole. Hypothetically, a crush video could be built around a legitimate hunting scene and thus be protected from prosecution.
The challenge to Congress is at once daunting and uncomplicated: There is no argument ever to justify torturing animals and no defense — ever — for selling videos created to profit from that torture. Figure it out. Fix it.
Kathleen Parker, winner of the 2010 Pulitzer Prize for Commentary, is a nationally syndicated columnist based in South Carolina.