Animal Cruelty v. Free Speech

In U.S. v. Stevens, 3rd Court of Appeals Robert Stevens was charged with, ”knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48.” selling depictions of animal cruelty, which is illegal according to the current law. While challenges to this law have been few and far between, the court is dealing with a question of overbreadth due to the current wording of the law. As it now stands, the law regarding depictions of animal cruelty could render the speech contained in hunting videos, bullfights, and other imported videos illegal. The court runs into a few issues here that need to be addressed. The first issue the court must address is whether it is constitutional to show depictions of animal cruelty that occurred in an area where what we consider cruelty is legal. Second, the court must come to terms with the original intent of the law, which was to dry up the market for crush videos, which show small animals being smashed, usually by a woman wearing high heels, that appeal to a very specific sexual fetish. Third, in determining whether the current law is overbroad, the court would have to test its logical bounds--to what degree can depictions of animal cruelty be legally depicted? Does it matter if the cruelty took place abroad? What distinguishes animal cruelty that appeals to the prurient interest from depictions that could be protected by a slaps clause?

In testing the bounds of this case, the court justices must position legal or unchallenged depictions of animal cruelty against what the current law forbids. The intent of this law is to stifle the production of crush videos and prohibit depictions of animal torture that might encourage individuals with antisocial tendencies (as expressed by finding pleasure in harming animals) towards further antisocial behavior directed against humans. This law is special because, as stated by the 3rd Court of Appeals it is asking the government to carve out a “new category of unprotected speech.”

At first glance, the effect of this law seems worthy. Since the location, time, and participants in these videos are often unknowable, it makes sense to prosecute the person selling such depictions. The law as it stands does include a slaps clause, which would protect depictions of animal cruelty that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

While I initially believed that the slaps clause would provide sufficient constitutional protection, the Supreme Court’s hypotheticals test its bounds. The slaps clause seems sufficient to include depictions of bullfighting (artistic, educational, and historical value), and even very gruesome videos of animal cruelty like those shown in the PETA marketing videos (educational and political value). The case gets more difficult when hunting videos are involved (educational value?), and downright confusing when bullfighting is poised against cockfighting or dog fighting. The Court points out that even a slaps clause in this context doesn’t seem sufficient to make a clear distinction between protected and unprotected speech. Additionally, since the burden of proof falls on the defendant, this lack of clarity could indeed chill expression.

Neal Katyal argues to the Supreme Court that the issue of overbreadth does not come into question concerning the challenged statute on an as-applied basis. I take this to mean that, in light of the multiple hypothetical questions posed by the court (i.e. hunting, stuffing a goose for foie gras), the statute would only be applied to videos of illegal activity that could potentially further the market for such activity (i.e. dog fighting and crush videos). This is problematic. I don’t see the point in letting an unclear law stand just because it isn’t applied in every case where it could apply. This statute seems both unclear and overbroad, even though in its application this hasn’t necessarily been the case.

I realize Congress will have difficulty creating a definition of prohibited materials without inadvertently condemning speech that should be legal, however, a more specific provision than a slaps clause in conjunction with a provision for depictions of legal behavior (i.e. hunting), and one that prohibits depictions of animal cruelty that appeal to the prurient interest (crush videos) should be added to narrow the definition and really carve out a specific type of speech that the government has a compelling interest in forbidding. The Supreme Court should uphold the 3rd Court of Appeals ruling and entrust Congress with writing a law that is more focused and comprehensive.

The 3rd Court of Appeals clearly applies John Stewart Mill’s approach when it argues that the government lacks a compelling interest in maintaining the challenged law. The court cites Texas v. Johnson, “If there is a bedrock principle underlying the First Amendment, it is that the Government ma not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”. Echoing Mill’s philosophy, the court argues that just because a majority finds an idea unpleasant or distasteful, does not mean that the individuals voice should be suppressed.

It seems like the members of the Supreme Court are leaning towards applying Edwin Baker’s Liberty Theory of Free Speech which, “protects self-expressive and creative conduct that involves people living their values…Given its emphasis on individual autonomy, the liberty theory protects nonviolent, noncoercive practices even if they are not welfare maximizing, but does not protect violent or coercive practices even if they are”(Tedford, 442). It is just running into trouble when individual autonomy clashes with animal harm.

I’m uncomfortable with letting a vague law stand and I don’t believe it can pass the Supreme Court. I think the current law is unconstitutional because it does not clearly state the breath of its prohibitions. If its intent is to dry up the market for illegal activity than the law should be far more explicit. However, based on the as-applied history of this law, it seems that letting it stand would do no substantial harm. The kind of speech that it prohibits is undeniably offensive but because the law oversteps its bounds and lacks clarity, congress should pass a more concise law that explicitly outlines the prohibited speech. Laws, especially those dealing with First Amendment prohibitions, should be cast as narrowly as possible. A law this broad will be ineffectual and vulnerable to further challenges if it is not revised.