The operator of a website that broadcasts offshore cockfights is challenging a federal ban on the sale of depictions of animal cruelty, saying it has a chilling effect on freedom of speech.

ToughSportsLive.com offers its subscribers live broadcasts of cockfights from Puerto Rico, where the “sport” is still legal. Hoping to preempt criminal charges under the largely untested animal cruelty law, Advanced Consulting and Marketing of Hollywood, Fla., which owns the site, filed a declaratory relief action last month.

Cockfighting, the company insists, is an “important and popular sport” and the law is “much broader than necessary” to accomplish its purpose of stamping out the animal-abusing porn genre known as “crush videos.”

The threat of criminal prosecution “unconstitutionally chills the free exercise of Plaintiff's First Amendment rights to freedom of speech,” the complaint says.

18 U.S.C. Section 48, signed by President Clinton in 1999, defines a depiction of animal cruelty as a “photograph, motion picture film, video recording, electronic image or sound recording” in which a living animal is “maimed, mutilated, tortured or killed.” Such depictions “often appeal to persons with a very specific sexual fetish,” the legislative history notes.

In the first criminal case to be tried under the law, Robert Stevens of Pittsville, Va., was convicted in 2005 of three counts for staging dogfights. And the cockfight webcasters may have as much chance of striking down the statute as Michael Vick does of winning an award from the Humane Society.

But Advanced Consulting claims it is protected from the law by an exception which applies to “any depiction [of animal cruelty] that has serious religious, political, scientific, educational, journalistic, historical or artistic value.”

“Cockfighting has been an object of serious anthropological study and philosophical study for centuries, and its importance in many cultures stretching from the world to the present day is well-documented,” the suit says, going on to quote such venerable figures as St. Augustine, Shakespeare and Abraham Lincoln.

A teaser trailer on ToughSportsLive, however, is heavier on hype than cultural enlightenment. Flashes of rooster ultra-violence alternate with voluptuous Puerto Rican girls flashing round cards, big smiles and prominent cleavage.

Besides cockfighting, the website broadcasts “Girls and Guns,” featuring bikini-clad women toting automatic weapons, and “Rio Heroes” (live “no rules” fist fights from Brazil).

As for constitutional issues, Clinton himself recognized the cruelty law should be given a “narrow construction” in his signing statement. “It is important to avoid constitutional challenge to this legislation and to ensure that the act does not chill protected speech,” he said.

“[T]he Department of Justice has evidently departed from President Clinton's directive,” Advanced Consulting complains.

But in the Stevens case, the government successfully argued that it has a compelling interest in protecting animals and the ban on commercial sale of depictions of cruelty is “narrowly tailored” to serve that interest. Stevens' appeal of his convictions is pending.

By Matt Reynolds
8/25/07