Animal Torture, the Supreme Court, and Absurdity from the NYT and LAT

by Stephanie Ernst

category: Politics and Law

Published October 06, 2009 @ 07:19AM PT

If you read Sunday's post from the Animal Legal Defense Fund (ALDF), you already have a grasp of what's happening at the U.S. Supreme Court today (if you haven't checked out that series of FAQ, I encourage you to do that now; we'll wait here for you). Today the Court hears arguments about a law that made illegal the sale of depictions of animal cruelty.

Both the Los Angeles Times and the New York TImes have published editorials opposing the criminalization of these videos, placing sadistic animal cruelty into a category that defies logic. And both (like other organizations that have taken the same position) have lost a huge chunk of my respect for that.

First, I'll defer to that ALDF post to give you a brief intro, in case you didn't go read the whole thing:

The question before the Court in Stevens is whether 18 U.S.C. § 48 (“Section 48”), a federal law that criminalizes the sale of depictions of animal cruelty, violates the Free Speech Clause of the First Amendment to the United States Constitution.

The defendant in the case is Robert Stevens, who was convicted in January 2005 of violating Section 48 by selling three videos depicting dogfights and hog-dogging, including graphic depictions of a pit bull mutilating the lower jaw of a live pig. Not only did Stevens sell the videos, he also narrated them, produced them, and advertised them in dogfighting magazines. Stevens appealed his conviction to the United States Court of Appeals for the Third Circuit. In a 10-3 decision, the Third Circuit held that Section 48 violated the Free Speech Clause of the First Amendment. The court declined the government’s request to establish a new class of speech—depictions of animal cruelty—that is “unprotected” by the First Amendment. To date, there are only a handful of “unprotected” types of speech: slander/libel, incitement, obscenity, fighting words, true threats, and child pornography.

Speech that incites violence is not protected. Speech that is "obscene" is not protected. Speech that involves the abuse of children is not protected. And obscene speech that depicts, celebrates, and encourages violence and abuse against animals should not be protected.

As many have noted, videos used to educate, investigate, and prosecute do not fall under this law; the law "does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." You have seen several videos on this very site depicting horrendous animal cruelty. But those acts were neither recorded nor shared for enjoyment or profit; they were recorded and shared to document the abuse, to educate people about the violence, to encourage people to not take part in this violence. Beyond these uses mentioned in the exception, the depiction of animal cruelty has no legitimate value. And I'm baffled by the reasons being given for opposing the law and by the comparisons being made and not made.

The Los Angeles Times argues, "Greater protection for animals is an important objective, but, as with other desirable goals, it can be pursued overzealously and at the cost of constitutional rights." I have no problem saying this: a nonhuman animal's inherent right not to be tortured is far more important than a human's constitutional "right" to get his or her kicks watching that torture.

And later, in reference to the free-speech exception created for child pornography:

In that 1982 case, Smith pointed out, the high court ruled that child pornography depicting actual children lacked constitutional protection. But he added that when the court allowed restrictions based on the content of speech, "the interest has -- without exception -- related to the well-being of human beings, not animals." Even then, the court has been reluctant to go too far in suppressing even offensive speech. For example, 20 years after it ruled that child pornography involving actual children could be outlawed, it struck down a law against so-called virtual child pornography featuring computer-generated images and the use of adult actors to portray children.

Is it the Los Angeles Times's position that our fellow animals are more akin to computer-generated images of children than to actual, breathing, feeling, vulnerable children? I can think of nothing more absurd. Children and animals are alike in their vulnerability and in their ability to experience fear, pain, suffering, trauma, panic, and all else. Animals and computer-generated images are alike in no ways. And that thus far, we've shown care only for vulnerable humans and not other vulnerable animals is not a justification for continuing to exclude fellow animals from our compassion and protection. Do we really need to discuss what our world would be like now if we based all our decisions about nonviolence, compassion, equality, and more on what has been the standard?

As the New York Times notes, the federal law in question "makes it illegal to sell depictions of acts of animal cruelty that are themselves illegal in the state where the depiction is sold." In other words, it stops people from circumventing their state laws in order to still profit from and enjoy sadistic illegal acts. But the New York Times nevertheless has this to add:

The Supreme Court has created narrow exceptions to the First Amendment for a few kinds of speech, including obscenity and, more recently, child pornography. The appeals court rightly declined to create another category for depictions of animal cruelty. . . . This is not the only deeply offensive speech protected by the Constitution. Nazis are allowed to march, and racists are allowed to spew racism.

What a ridiculous analogy. We're not talking about people who support the abuse of animals marching ominously in the streets and shouting hateful words. We're talking about them recording, selling, and profiting from videos of torture. Are Nazis and racists allowed, with a New York Times blessing, to record their pals torturing human victims and then sell those videos on their site for the enjoyment of their fellow Nazis and racists? The NYT's analogy is, to put it bluntly, crap.

There aren't many laws that I consider all that helpful in the fight to stop the exploitation, suffering, and killing of animals, and this law doesn't and won't make even a visible dent, but that there are actually people and organizations opposing this law -- and that they are incapable of seeing the bizarre nature of the distinctions and comparisons they are (and are not) making -- is discouraging and infuriating. If the Supreme Court justices agree and rule that disseminating, profiting from, and purchasing depictions of sadistic animal cruelty is protected, when human child pornography is not, when incitement of violence against humans is not, our world will take a giant step backward.