By Kristin Billera
On Monday, the Supreme Court added a case to its docket which will determine if a federal statute that outlaws the sale of videos of animal cruelty is a violation of the 1st Amendment. The law was declared unconstitutional by the 3rd Circuit Court of Appeals and the conviction of defendant Robert Stevens, who had sold videos of dogs fighting and attacking pigs was overturned.
The Supreme Court has not declared an entire category of speech as outside of the realm of 1st Amendment protection in 27 years, since it held that child pornography was not protected speech in New York v. Ferber. Traditionally, unprotected speech includes that which poses a physical threat to people (fighting words, etc.) or appeals to “prurient interest.”
The 3rd Circuit Court reasoned that child pornography is the only currently unprotected form of speech which is remotely similar animal cruelty videos. The court applied the five-part analysis used in Ferber to the Stevens case:
- First, the court found that the law fails to serve a compelling government interest because the regulation of depictions of such cruelty does not necessarily aid in preventing animal cruelty.
- The second factor in Ferber is that “child pornography is ‘intrinsically related to the sexual abuse of children’” and that children will continue to be psychologically harmed by the presence of their image in the marketplace. Animals are not capable of such awareness and thus, once the act of cruelty is committed, the harm that they suffer is not prolonged in any way.
- The third factor is that the “distribution market for child pornography must be closed so the production of child pornography will decrease.” However, the Court reasons that in the case of dog fighting, revenue is derived primarily from gambling and not the video sold of the event.
- The fourth factor discusses the value of the speech, a variation of the Miller Test, but the Court does not take this factor into account because the Court does not use this test outside of speech that appeals to “prurient interests” and does not require other speech to have serious value.
- Lastly, the court reasoned that the statute is not narrowly tailored enough to survive heightened scrutiny.
In my opinion, the law should discourage animal cruelty and prosecute those who violate those laws. However, when it’s not clear that restricting speech would do anything to remedy the situation, it is better for the courts to err on the side of allowing free speech. If the definition of unprotected speech does not remain extremely narrow, then it will become easier for courts to rule that other types of speech are not protected, which may lead to the erosion of the marketplace of ideas.
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April 23, 2009 at 8:48 pm
Justin Silverman
just wanted to mention that the statute does provide an exception:
(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
obviously this is meant partly to exclude any journalists who may want to document dog fighting or show it on the evening news as part of a larger story; still, i’m always leery of such exceptions because they beg the question: who is a journalist? i think we should be cautious whenever there is a law that compels a court to define journalism, art, educational value, etc.
and then to have it explain the added definition of “serious”? i think this is dangerous territory, not to mention not quite up to par with child porn and obscenity.
a good quote by randazza at the end of this article: http://www.firstamendmentcenter.org/analysis.aspx?id=20363
“The dissent in this case took the position that the First Amendment is a mere balancing test, and that if the value of the censorship is more than the value of the speech, then the censorship is permissible. I’m shocked that three justices signed on to such an absurd theory. The dissent completely missed the constitutional principle that free speech itself is the value you balance — not the content at issue.”
April 24, 2009 at 1:36 pm
Kristin Billera
I agree Justin. This is where things start to get murky because its not something that is as clearly and obviously unprotected as child porn. If judges rule against the 1st Amendment in cases like this, then it opens up the possibility that more innocuous forms of speech can be viewed as unprotected because they don’t have “serious value.” If these videos are viewed as unprotected speech, how far away are we from cases where perhaps violent video games are rule as unprotected because supposedly exposing children to violence makes them violent? Granted, in that such situation, it’s simulated violence and not a real illegal act, but I’m hoping the SCOTUS doesn’t try to reason that depictions of the behavior will encourage it, because it’s a slippery slope from there.
The focus in this situation needs to be on preventing the actual act of animal cruelty, not the depictions of it. I’m highly skeptical of any reasoning that suggests that depictions of illegal behavior encourage people to go out and commit illegal acts.
April 29, 2009 at 6:20 am
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May 8, 2009 at 11:23 am
marcorandazza
You might enjoy my post on this.
July 2, 2009 at 9:32 pm
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