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COLUMN: The Law in Real Life: Should Images of Animal Cruelty Be Protected Under the First Amendment?

COLUMN: The Law in Real Life

By Linda Holmes, JD

Should Images of Animal Cruelty Be Protected Under the First Amendment?

April 24, 2009

With the high-profile arrest and conviction of the NFL’s Michael Vick, more people than ever are aware of the illegality of dogfighting. And now, the issue is coming before the United States Supreme Court…sort of.

Robert Stevens isn’t at the center of a case that will soon be considered by the U.S. Supreme Court because he was convicted of dogfighting. He’s at the center of the case because he sold videos of dogfighting, and he is the first person ever convicted under a federal statute criminalizing interstate trade in depictions of animal cruelty.

Under 18 U.S.C. 48, a person commits a crime if he “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.” There are, as you might expect, exceptions for work of “serious” value, be it political, artistic, educational, journalistic, educational, or something similar. In other words, if you sell videos of dogfighting as art, that’s legal; if you sell them just to meet a demand for them, it’s not.

The statute was not originally written to cover dogfighting. It was originally written to cover what are known as “crush videos,” which are a form of pornography, perplexing to many of us, in which women harm or torture animals by kicking or crushing them with their feet. Of course, this conduct would already be animal cruelty, but it had apparently proved difficult to prosecute the direct participants, so 18 U.S.C. 48 was passed in an attempt to cut off the channels of distribution.

Third Circuit Rejected Highest Level of Protection for Depictions of Animal Cruelty

When the Stevens case reached the United States Court of Appeal for the Third Circuit, the Court concluded that the statute is an unconstitutional violation of the First Amendment. In doing so, the Court rejected the argument advanced by the government that all depictions of animal cruelty fall into a class of expression that is not protected under the First Amendment at all. If that argument were accepted, then depictions of animal cruelty would be deemed the equivalent of obscenity for First Amendment purposes – a high standard that prevents expression from having any protection whatsoever.

The Third Circuit noted the limited number of categories of speech that the Supreme Court has held to be entirely outside the First Amendment – child pornography involving actual children, fighting words, obscenity, and imminent incitements of illegal activity are among them. It noted that these are all types of speech that either appeal to the prurient interest (obscenity) or potentially cause grave harm to actual human beings (just about everything else).

Most important, the majority of the Court rejected the analogy drawn by the government between child pornography and depictions of animal cruelty. In a lengthy opinion, it noted that in cases involving religious animal sacrifice, the Supreme Court has declined opportunities to declare that prevention of animal cruelty is a “compelling interest” of the kind that might justify the statute. The Court ultimately held, “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.”

Dissenting View Would Create Problems Determining Works of Serious Value

In a stinging dissent, three judges had absolutely no difficulty concluding that the government has a compelling interest in preventing animal cruelty and concluded that any depiction of animal cruelty that could be prosecuted under the statute has so little value that banning it is perfectly legal.

Perhaps the most interesting part of the dissent, however, involves its foray into artistic advice. Citing the exception for works with “serious” value, as if it is some kind of easily-applied button that, when pressed, will sort the serious from the unserious, the dissent states:

While this exception removes the possibility of the statute reaching serious works, we consider it unlikely that visual depictions of animal cruelty will often constitute an important and necessary part of a literary performance, a scientific or educational work, or political discourse…Nor do we see any reason why, if some serious work were to demand a depiction of animal cruelty, either the cruelty or the animal could not be simulated.

It is always unsettling, and sometimes breathtaking, to hear a court pronounce broadly what is and is not a logically important part of an artistic piece or educational work, not to mention political discourse. Commentators have noted that the statute could potentially criminalize the distribution of videos depicting animal cruelty even where the video condemns it, depending on whether the court concluded the value was adequately “serious.” Dogfighting videos do not present a particularly sympathetic case for expression, but asking judges to determine whether a video of, for instance, religious animal sacrifice is a protest against them or just a sensational money grab is outside the area of judicial expertise. And asking judges to determine whether a simulation would have the same artistic impact as a real event seems even more hazardous.

Of course, actual cruelty to animals is already illegal. A person who harms an animal remains punishable for committing the acts that actually do harm. The issue here is whether it is necessary to punish someone who does not commit acts of animal cruelty simply because he sells, for instance, a video of a dogfight that happened 20 years before he was born, or a video of a ritual taking place in another part of the world that is commonplace there but would constitute animal cruelty in his home state.

The dissent argues that these depictions are easily banned because they can’t possibly have any value to anyone who doesn’t have “a morbid fascination with suffering.” It should go without saying, of course, that one person’s morbid fascination is another person’s artistic inquiry.

Removing First Amendment Protection Would Have Far-Reaching Consequences

In the end, the dissenting opinion is based largely on the equating, in this context, of animals with children who are exploited in pornography; it classifies both as “vulnerable victims.” The dissent’s logic is perplexing, though, because society draws many, many lines between what is permitted as to humans and what is permitted as to animals. Consider the simple fact that animals can be euthanized. For better or worse, the law simply does not equate vulnerable children and vulnerable animals in most contexts.

Outside the realm of obscenity, there is little precedent for removing classes of speech from the protection of the First Amendment unless the expression itself causes harm to actual human beings. Should the Supreme Court remove depictions of animal cruelty from First Amendment protection, it undoubtedly will raise far-reaching issues of whether to restrict commercial distribution of videos or photographs of people committing any number of other serious crimes.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting. She also edits the Monkey See blog at NPR.org.


18 U.S.C. 48

New York v. Ferber, 458 U.S. 747 (1982).

United States v. Stevens, 533 F.3d 318 (3d Cir. 2008).

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