Should animals be granted some of the same rights as humans? Well, we’re about to find out. Today (April 21) the Supreme Court agreed to consider if depicting animal cruelty merits First Amendment protection. I was reading about this here, and it sparked my curiosity, because I am amazed at how much protection we give animals in general. Competing with the advertisements to donate money to feed children in third world countries, we see ads to donate money to save dogs, cats, and other animals. Animals might have a huge place in our society, but I do not think that overall they should have the same rights as humans: I do not believe that there should be a new category of exceptions to the First Amendment regarding depicting animal cruelty; I think other exceptions should have priority. In Chaplinsky we learned that “there are certain well-defined and narrowly limited cases of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem” (Course Packet). However, I do not feel animal rights should be involved in this human, First Amendment right. That being said, I am not advocating harm to animals, I just feel that a law preventing this could go ‘too far.’
One of the main arguments for not protecting this speech is to parallel depicting cruelty to animals to child pornography. This goes a little too far. In United States v Stevens (more on this case later), the court said this regulation of animal cruelty is not “of the same magnitude as protecting children,” in part because there is not continuing harm to the animals involved—in contrast to the lasting harm to the children used in child pornography.” Another website says, “While animals are sentient creatures worthy of human kindness and care, one cannot seriously contend that the animals themselves are continuing harm by having their images out in the marketplace.” Also, child pornography can be considered obscene, according to the obscenity test found in Miller v California: “the dominant theme of the material taken as a whole appeals to a prurient interest in sex, the material is patently offensive…and the material is utterly without redeeming social value” (Course Packet). Animal cruelty does not necessarily deal with sexual matter, so it cannot be obscene, thus it does not fall under the category of obscenity that the First Amendment does not protect.
One of the most relevant cases that deals with animal cruelty is United States v. Stevens. Robert Stevens sold vintage videos depicting dogfighting (the act of dogfighting is illegal in all states). In 1999, President Clinton passed a law, regarding depicting animal cruelty (thought this was mostly in regards to "crushing" women in high heels crushing small animals for a sexual fetish). The law states, “whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than five years, or both.” Under this law, in 2005, Stevens was charged with three counts of knowingly selling depictions of animal cruelty. In 2008, Stevens argued that this 1999 law violated his First Amendment rights. He went back to court, and won- the 3rd U.S. Court Circuit of Appeals agreed that this law was an unconstitutional infringement on freedom of speech. Today, the Supreme Court has agreed to revisit this law (not this case), to determine if depictions of animal cruelty should again be illegal and not protected by the First Amendment.
If the Supreme Court makes depicting animal cruelty illegal, this means you could no longer view on television (or anywhere public) the acts of bullfighting, fishing, or hunting, as these cause harm to animals. Out the window goes “Deadliest Catch”. And what about fishing tournaments? It would be sad to see them go. The law put in place by Clinton does not include in its definition of animal cruelty that it must involve a human. If a human does not have to be involved, does that mean that depicting animal on animal violence would be illegal? That would rid TV of many Animal Planet shows; often times you will see a cheetah killing its prey, or a pack of lions dining on a wildebeest. These examples depict cruelty/killing of animals to other animals. Additionally, what about cruelty of animals towards humans? That’s still animal-involved cruelty. Gone would be the documentaries of snake charmers, who end up getting bit by the snake. What about alligator or shark bites? Or the miscellaneous dog bites as seen on “America’s Funniest Home Videos?” Those animals are being somewhat cruel—they are wounding humans, and wounding is included in the 1999 law regarding depicting animal cruelty. Then, what about video games depicting animal/ human violence? Video games have not been regulated, because there have been no substantive evidence linking human violence with violent video games. However, if this law passes, depictions of human/animal violence in video games would no longer be legal. That means Mario (essentially a human) will have to leave those Koopa Troopas (which are essentially turtles) alone.
Finally, a law against depicting animal cruelty must not be held to a double standard. Right now you see programs on Animal Planet showing dogs being abused before they are rescued and taken to a better home. This is displaying animal cruelty. Although it is not endorsing it, it is being used to make money for the Animal Planet through supporters and viewers. One of Stevens’ arguments against the animal cruelty law he was being punished for was that it “amounted to unconstitutional viewpoint discrimination, because the same footage he was prosecuted for using could be used legally by dogfight prosecutors, educators, and historians” (http://www.firstamendmentcenter.org/analysis.aspx?id=21505). In my opinion, this is a major trump card that lead to him winning his appeal. Viewpoint discrimination is, under my understanding, unconstitutional, except in some circumstances that involve Government speech and Government money. It is not fair for animal rights activists to be able to use horrifying animal cruelty images, and not the other side (as wrong as that may seem).
My prediction? The reconsideration of this law will not pass, for reasons that I have discussed. But I may be wrong.
The law requires that the animal cruelty depicted be illegal in the State that the material is present in. While cheetah chasing down wildebeast is indeed harmful to the wildebeast, I hardly think that states have outlawed such behaviour.
ReplyDeleteAgain, as I argued on Zack's blog, I believe Stevens was wrongfully convicted in the first place, given the national attention being given to animal cruelty after Michael Vick's media venture. Under such heavy influence, even the best of people are prone to erring on the side of extreme caution when banning depictions of illegal materials.
While two of the videos I can see may fall under the law, the third, details of training pit bulls for hunting, does not seem to belong under Section 48, as hunting is generally legal under certain situations. Basically, the case confuses the hell out of me.
Cool topic- I wrote about the same thing. I agree with you that depiction of animal cruelty shouldn't be an exception to the First Amendment. Section 48, as you stated, was originally passed to target the makers of crush videos. In the 10-year history of this federal law, only 3 charges have been made against violators of Section 48, and none have been makers of crush videos.
ReplyDeleteIf you read about Stevens, you'll find that he's against dogfighting. He's written a book about pitbull training that has been sold in Barnes & Noble and on Amazon.com. He owns a store that sells pitbull training equipment. And finally, he's produced documentaries on pitbulls... and that's where he got into trouble, because in these documentaries there are scenes of pitbulls fighting. The government acknowledges that he wasn't at the fights, he didn't participate in any animal cruelty, and the events were legal where they occurred (Japan). It was solely the DEPICTION, as you say. And the irony is that those same depictions HAVE been used by animal-rights activists.
This isn't even content regulation, because the animal rights activists aren't being charged for using the same depictions as Stevens. I have a hard time understanding how it's viewpoint discrimination, though, because Stevens states in his book that he's against dogfighting. I don't understand what legally distinguishes him from the animal rights activists. I think it is because he was SELLING those depictions.
Stevens even brought in all sorts of experts to testify that these depictions had serious educational and historical value, which I agree that they do. I would be shocked if he ends up losing this case.