By Analogy

One of the newest issues added to the agenda for the Supreme Court is the decision as to whether to bring back a federal law, which prohibited the sale of depictions of animal cruelty. The 3rd U.S. Circuit Court of Appeals ruled the statute unconstitutional in the case United States of America v. Robert J. Stevens. Mr. Stevens was indicted on three counts of selling videotapes depicting organized dog fights and other violent footage involving pit bulls. The 3rd Circuit Court found in favor of Mr. Stevens who claimed that the federal code Title 18 Section 48 was an unconstitutional breach of his freedom of speech. The statute makes it illegal to “create, sell, or possess a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain” with penalties up to five years in prison. The law does however make exceptions for those always well-defined cases where the depiction has serious religious, political, scientific, educational, journalistic, historical, or artistic value. No ambiguity there of course. The statute was originally intended to deter “crush videos” which appeal to a particularly deviant sexual fetish. However, the 3rd Circuit Court of Appeals stated animal cruelty depictions did not fall under any of the previously defined categories of unprotected speech and struck down the statue. Obviously, there are many who would like to see this law upheld and compare depictions of animal cruelty to three classes of speech already determined to be unprotected. By analogy to violent speech, obscenity, and child pornography, animal rights activists hope to make a case to make animal cruelty categorically unprotected speech. Let’s take a look at some of these arguments.

The first argument used the restriction of violent speech. It has long been an assertion that animal cruelty can be a predictor of future acts of violence against humans later in life. In fact, Wright and Hensley developed the graduation hypothesis after their 2003 study. Of 354 serial murderers studied, 21% had a history of animal cruelty earlier in life. However, in Brandenburg v. Ohio, the Supreme Court made it very clear that the government could not restrict speech except in the case where the speech incited immediate unlawful action. Despite this suggested correlation between animal cruelty and future violence against humans, it is doubtful imminence could be proven. There could be merit in arguing the illegality of dog fighting and animal cruelty, and that the watching of these videos could encourage participation in the activities themselves. However, in Ashcroft v. Free Speech Coalition, the court said that "government may not prohibit speech because it increases the chance an unlawful act will be committed "at some indefinite future time,'" because "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it,". I think it is probably safe to say the violent speech argument isn’t going to be a particularly effective one.

The second argument is meant to rope violence in with obscene speech. Of course we all remember that in order to be considered obscene the average person must find it a) appeals to the prurient interest, b) depicts sexual conduct in a patently offensive way, and c) lacks serious literary, artistic, political, or scientific value. The language of Title 18 section 48 mimics obscenity by qualifying animal cruelty depictions without any serious value as the only ones prohibited. Many also argue that violent speech can be just as obscene as sexual speech, and that violent speech serves to simply arouse viewers without any sort of intellectual stimulation just like sexual obscenity. However, unfortunately for this argument, the Supreme Court decided in Winters v. New York that depictions of crime and other violent actions meant solely for entertainment purposes were just as protected as those meant to inform. No First Amendment exception was made here for depictions of violence, so unless the Supreme Court would like to change this precedent, this seems unlikely to hold much weight either.

Lastly, animal rights activists hope exceptions to freedom of speech for child pornography cases will be similar enough to include animal cruelty. In New York v. Ferber, the Supreme Court decided child pornography was not protected because the creation caused harm to the child. The Court also cited that child pornography was fundamentally associated with child abuse, and therefore should not be protected under the First Amendment. Definitely a better argument here than the last two. Actually, this decision calls into question the first argument used against the constitutionality of the animal cruelty statute. Even though it was so careful in Ashcroft to assert the threat of illegal action had to be imminent, it seems to be contradicting itself here by citing the association with child pornography and child sexual abuse. If the Supreme Court was willing to change its mind once before, why not in this case I suppose? Also, animal rights activists could most certainly make the argument that just as children are harmed in the production of child pornography, animals are harmed in the creation of crush videos or dog fighting videos. It would seem it would then boil down to how similar in rights the Supreme Court considers animals to children. Perhaps not everyone believes the Founding Fathers meant the Constitution to apply to their furry friends. But I digress.
Ultimately, we will have to wait to see which if any of the previous arguments stick when the Supreme Court deliberates over this case. I personally don’t enjoy watching animals harmed in any way, but I also get a little more nervous each time the Supreme Court decides the First Amendment doesn’t protect another category of speech.

Also used :
Reynolds, Michael. " DEPICTIONS OF THE PIG ROAST: RESTRICTING VIOLENT SPEECH WITHOUT BURNING THE HOUSE." Southern California Law Review 82 (Jan. 2009): 341-387. LexisNexis Academic. LexisNexis. 20 Apr. 2009 .