On Tuesday, October 6, the United States Supreme Court heard oral arguments in United States v. Stevens. Although not an equine law case specifically, Stevens raises an important question that affects everyone concerned about animals: what should happen when animal welfare concerns come into direct conflict with the United States Constitution?

The issue presented in Stevens is a simple one: Dog fighting is against the law in all 50 states and the District of Columbia, so it stands to reason that selling videotapes of illegal dog fights also should be illegal.

Or does it? Congress and the federal government certainly think so.

In 1999, Title 18, Section 48, of the United States Code was created to make it illegal for a person to knowingly create, sell, or possess any "depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain." Drafted as a response to so-called "crush videos" in which women wearing high heels crushed to death small animals, the law paints with a broad brush, covering any visual or audio depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" if the conduct is illegal under Federal or state law. There are exceptions if the depiction has "serious religious, political, scientific, educational, journalistic, historical, or artistic value