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Lawyer says dog-fight video is free speech



Published: Fri, October 27, 2006 @ 12:00 a.m.



The law under which the man was convicted is not applicable, his lawyer said.

PITTSBURGH POST-GAZETTE

PITTSBURGH -- The lawyer for a man convicted of distributing videos of dog fighting in the first case of its kind in the country argued to an appeals court that what her client sold was an expression of free speech.

"This is not a case about animal cruelty," said Karen Gerlach, the public defender handling the appeal. Instead, she told a three-judge panel of the 3rd U.S. Circuit Court of Appeals on Wednesday that Robert Stevens was the target of an overly broad criminal statute designed to target sexual fetishists.

The court took the matter under advisement and will issue an opinion at a later date.

Stevens, of Pittsville, Va., was the first defendant in the country to go to trial on the charges. He was convicted in January 2005 in U.S. District Court in Pittsburgh of three counts of selling videos that depicted animal cruelty and was sentenced to 37 months in prison.

1999 law

The law under which he was convicted -- it was enacted in 1999 -- was designed to stop the making of so-called "crush" videos, which depict women in high heels crushing small animals. The videos apparently appealed to some fetishists.

However, her client's case has nothing to do with "crush" videos or prurient sexual interest, Gerlach said.

Because of that, she claims that the videos are a protected form of free speech. The only exceptions to First Amendment protections include words that are lewd, obscene, profane, libelous, insulting or fighting words.

None of those descriptions are applicable in her client's case, Gerlach said. She also argued that the law her client was convicted under targeted the wrong person.

"The statute is penalizing people several steps down the line -- people who had nothing to do with animal cruelty," she said. "There's no evidence he ever hurt an animal, tried to hurt an animal, fostered it or encouraged it."

The videos in question were taken either in Japan, where dog fighting is legal, or in the United States before it was outlawed.

Gerlach also noted that the law provides an exception for videos that have scientific, educational or historical value. She claims that the prosecution did not prove that was lacking in Stevens' case.

Government's argument

Assistant U.S. attorney Robert Eberhardt dismissed that notion.

In addition, he argued to the appeals court that the statute is not overly broad, in that it seeks to punish those who profit from the commercial sale of depictions of animal cruelty.

That, the prosecutor said, is exactly what Stevens was doing in this case.

The government's compelling interest -- which is required to override the First Amendment protection to free speech -- is to prohibit animal cruelty, Eberhardt said.

In addition, he noted that some studies have shown that people who participate in animal cruelty may be more likely to commit other violent crimes.




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