Cockfighting is illegal in 49 states and it's a federal crime to sell depictions of animal cruelty. But Advanced Consulting and Marketing webcasts its cockfights from Puerto Rico, where it's legal, and the company claims, the federal law is violation of its First Amendment rights, The New York Times reports.
The question of whether the First Amendment allows the government to ban depictions of illegal conduct, as opposed to the conduct itself, is a difficult one, legal experts said.
"We believe firmly that broadcasting and selling legal cockfighting over the Internet is not a crime,” said David O. Markus, a lawyer for the company, which runs the site www.toughsportslive.com. "As bullfighting is part of Spanish culture and as violent human fighting is part of our culture, cockfighting is part of Puerto Rican culture."
A Virginia man who was sentenced to three years for selling videotapes of dog fights is also challenging the law, which makes it a crime to sell depictions of “conduct in which a living animal is intentionally mutilated, maimed, tortured, wounded or killed.”The cockfighting Web site, which calls itself “the #1 rooster fighting network in the world” and sells package deals that also allow subscribers to see women in bikinis shooting large guns, seems unlikely to qualify. The law was enacted in response to so-called “crush videos,” in which, according its legislative history, women “talking to the animals in a kind of dominatrix patter” crushed them “with their bare feet or while wearing high-heeled shoes.”
President Clinton issued a signing statement that the law should be construed narrowly against “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But the government has been prosecuting the law broadly, going after dog fight videotapers.
In the Virginia case, a federal judge upheld the law in an oral ruling in 2004. The defendant, Robert J. Stevens, has appealed to the Third Circuit Court of Appeals.Prosecutors in the case said the 1999 law was a constitutional abridgement of speech, similar to laws prohibiting obscenity, child pornography, incitement and fighting words. The law, their brief said, “prohibits a new class of speech, so lacking in value, that it should not receive First Amendment protection.”
Lawyers for Mr. Stevens argued that the 1999 law was so vague that it could apply to hunting and fishing. One of the tapes Mr. Stevens sold, they added, showed dog fighting in Japan, where they said the practice was legal.