Justices To Rule On Law Banning The Depiction Of Cruelty To Animals

[judgeposer]

From The New York Times, April 21, 2009:

April 21, 2009
Justices to Rule on Law Banning the Depiction of Cruelty to Animals
By ADAM LIPTAK WASHINGTON — It has been more than a quarter century since the Supreme Court last recognized a new category of speech with so little value that it did not deserve the protections of the First Amendment. On Monday, the court agreed to decide whether depictions of cruelty to animals should join obscenity and fighting words as speech unworthy of constitutional protection.

The new case arose from the conviction of Robert J. Stevens, a Virginia man sentenced to 37 months in prison for selling videos of pit bulls fighting each other and attacking other animals. A 1999 federal law makes it a crime to create or sell such videos and other depictions of cruelty to animals.

All 50 states ban the cruelty itself. The federal law is aimed solely at depictions of it.

In Mr. Stevens’s case, his lawyers told the court, “there is no claim that the defendant was himself involved in acts of animal cruelty or was even present at their commission.” The lawyers also said that many, if not all, of the acts documented were lawful in the jurisdictions in which they were filmed.

Some of the footage on the videos Mr. Stevens sold was decades old, and some of it showed dog fights in Japan, where they are legal. But the 1999 law requires only that the activities shown be illegal where the video was bought or sold. The law contains an exception for materials of “serious religious, political, scientific, journalistic, historical or artistic value.”

Last summer, by a vote of 10 to 3, the United States Court of Appeals for the Third Circuit, in Philadelphia, reversed Mr. Stevens’s conviction and struck down the law under the First Amendment. The majority said that if the law stood it could make it a crime to sell videos of bullfighting in Spain or of hunting out of season.

The Supreme Court has placed only a few kinds of speech beyond the protections of the First Amendment, among them obscenity, incitement, threats, fighting words and, in 1982, child pornography.

In a supporting brief urging the court to hear the case, United States v. Stevens, No. 08-769, the Humane Society of the United States said that “gruesome depictions of animal mutilation targeted” by the law should join the list because they “simply do not merit the dignity of First Amendment protections.”

Writing for the majority in the Third Circuit’s decision, Judge D. Brooks Smith said animals were not affected by videos showing cruelty to them in the same way minors were affected by child pornography.

“While animals are sentient creatures worthy of human kindness and human care,” Judge Smith wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace.”

The 1999 law was prompted by so-called crush videos, in which women step on small animals. A House report said the videos catered to “a very specific sexual fetish.”

“In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter,” the report said. “The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”

Congress found that there was an active market for crush videos in 1999, with thousands of them available for $15 to $300 each.

When President Bill Clinton signed the bill into law, he issued a statement instructing the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But court papers indicate that there have been three prosecutions under the law, all involving videos of dogfights.

[Thermo]

I tend not to like laws which target 'depictions." If it's a recording of a real event, then it's evidence of a crime. Go after them that way If it's a 'depiction' only, it's protected free speech.

Laws like this could kill everything from sportsman hunting/fishing videos to videogames where you slay beasts and monsters, even to activist-created propaganda materials and PETA PSA's, which are where I seem to recall seeing some of the most vivid 'depictions' of animal cruelty.

[joytron]

people are so fucked up.

[erufiku]

So... no coverage of the Canadian baby seal clubbing season?

[Sherwood]

I tend not to like laws which target 'depictions." If it's a recording of a real event, then it's evidence of a crime. Go after them that way If it's a 'depiction' only, it's protected free speech.

Bingo. I hope, for this reason, that this is not ruled upon. After all, depictions of obscenity, threats or incitement aren't criminal, even if the acts themselves are.

Where would this put the film Amores Perros, for one?

[An1m]

I tend not to like laws which target 'depictions." If it's a recording of a real event, then it's evidence of a crime. Go after them that way If it's a 'depiction' only, it's protected free speech.

Laws like this could kill everything from sportsman hunting/fishing videos to videogames where you slay beasts and monsters, even to activist-created propaganda materials and PETA PSA's, which are where I seem to recall seeing some of the most vivid 'depictions' of animal cruelty.

The law contains an exception for materials of “serious religious, political, scientific, journalistic, historical or artistic value.”

What Peta does would be exempt, and so would videogames. Hunting and fishing videos not so much.

[Sonthert]

I hope it passes and PETA gets arrested for showing those videos they like to show.

[evilded777]

I tend not to like laws which target 'depictions." If it's a recording of a real event, then it's evidence of a crime. Go after them that way If it's a 'depiction' only, it's protected free speech.

Laws like this could kill everything from sportsman hunting/fishing videos to videogames where you slay beasts and monsters, even to activist-created propaganda materials and PETA PSA's, which are where I seem to recall seeing some of the most vivid 'depictions' of animal cruelty.

So... its ok to profit from a crime, if you are not the one committing the crime?

Personally, I think this is disgusting (the case cited). And maybe that right there disqualifies me, but this is not protected speech. This is profiteering off of deliberate cruelty inflicted upon sentient creatures.

Some stewards we are....

[Thermo]

So... its ok to profit from a crime, if you are not the one committing the crime?

Everybody does it. Journalists, policeman, lawyers, jail guards, war photographers, alarm manufacturers, watchdog groups, all make their money due to crimes they don't commit. The more crimes, the bigger their industries grow and prosper. We are also free not to buy some guy's DVD compilation of his dogfighting video collection and not support him. (Well, for now, apparently soon we will not be free to not buy it or otherwise. The choice will already be made for us.)

Personally, I think this is disgusting (the case cited). And maybe that right there disqualifies me, but this is not protected speech. This is profiteering off of deliberate cruelty inflicted upon sentient creatures.

Some stewards we are....

They always cite the most offensive, disgusting cases to get people all worked up and emotional before yanking away freedoms they're accustomed to having. Manipulation is easy. But this kind of law is dangerous, and after people line up to support it in order to stop those awful "kitten-stomper" fetish videos, 99% of those affected by it will be sportsmen with small independent tv shows, the pet industry, the horse and dog racing industries, and artists whose work 'offends' someone. They will still be living under this when all the kitty-squishy videographers and Michael Vick's of the world are in jail.

Exemptions will be worded in doublespeak. Who is to say that my cartoon drawing of a fireman biting the nose off of a bottleneck dolphin is 'serious' or not? Will I be required to caption my drawing with a 'serious' disclaimer: "Don't Laugh, I'm Being Artistically Serious?"

If I write "LULZ" under the picture, will I go to jail for "not being serious" in my animal cruelty depictions? Will you be charged with a crime for viewing it, or having it on your hard drive, for seeing it and not immediately reporting it to your local 'animal shelter social worker person'?

Banning 'depictions' of something is one flimsy step away from making it illegal to talk about something.

[TheScotsman]

I hope it passes and PETA gets arrested for showing those videos they like to show.

That would be nice, those peta freaks are finding 3rd world/ancient BS video and parading it about like an every day event in normal America.

On the other hand, once one heads down the road of banning a video of a true event that actually happened/is happening it can only lead to a bad end. Censorship of anything is wrong... even if it happens to be something I personally find distasteful.

[Sonthert]

To expatiate on what Thermo said, Evilded:

Why then, can they show results of crime scenes on the news? They didn't commit the crime, but they are profiting from it, through advertisers and commercials. The people watch it, they didn't commit the horrible crime, but...Drunk driving is a crime, but how many pictures of drunk driving crashes resulting in death can we watch? If it was uniformly enforced, Cops! would have to be canceled!

[moatilliatta]

I hope it passes and PETA gets arrested for showing those videos they like to show.

That would be nice, those peta freaks are finding 3rd world/ancient BS video and parading it about like an every day event in normal America.

Actually most of what they show (at least with factory farm stuff) is pretty commonplace, sadly.

PETA gets a bad rap because there are those few people who go WAY to far and that's what the public sees and claim they do it for PETA... It's not like you can go to their website and sign up for your free bucket of red paint and a schedule of this month's fashion shows.

Think of how strict we have to be about NHT stuff here, it's people that are getting into trouble with the (stupid, hypocritical) laws using things besides tobacco in their hookahs that make the rest of the hookah world look suspect to the populace. Same with every group that has an outspoken, overzealous minority, they're all the public sees.

[joytron]

Maybe i am not reading this right, but does anyone believe that showing examples of animal cruelty should be legal?


As far as crimes being committed and then being showed on TV, is it okay to say show acts of rape or torture?
(in response to the show cops, yes i think that show should be cancelled, watches a bunch of uneducated drug addicts committing various crimes is the last thing we as a society should be watching)


I believe that animal cruelty is one of the most disgusting acts(and in fact one of the few topics i am moved by on a personal level), causing harm to a creature for personal enjoyment shows a lack of (in my perspective) moral integrity. Its hard to believe that people on this forum actually believe their freedoms are being infringed on with a law such as this. If you are personally affected by this law i think you need to take a serious look at your life. A lack of consideration for life shows how little progress has been made in our society regarding ethics and the fact that laws must be created to enforce this shows how much further we need to go.

[moatilliatta]

Well put.

[TheScotsman]

To expatiate on what Thermo said, Evilded:

Why then, can they show results of crime scenes on the news? They didn't commit the crime, but they are profiting from it, through advertisers and commercials. The people watch it, they didn't commit the horrible crime, but...Drunk driving is a crime, but how many pictures of drunk driving crashes resulting in death can we watch? If it was uniformly enforced, Cops! would have to be canceled!

Does not the actual news profiteer from the same types of video? After all, there are commercials funding them too!

Evan as such, when would the line be drawn?
Would actual news video be subject to the censorship?
What would constitute news coverage?
Who gets to determine when it's classified as news coverage?

I personally hate "cops"... it is little more than cop-hero-propaganda, that said, once the cops start operating under the cover of a media-censorship blanket, we are all screwed. Think of Katrina/new Orleans if GW had the shock collars on the journalists, Waco, Ruby ridge, and Guantanamo for a few more. Would we ever hear about the embarassment the gov't suffered when Blackwater murdered a bunch of unarmed civilians? Given, none of these were directly about animal cruelty, but history has proven over-and-over, once a right is forfeit to the gov't, the intervention does not stop there. The camel's nose is in the tent. I don't think I would like a world where the gov't can say what is fit for public viewing. Would there have to be a FOIA suit for every little piece of media that cast a bad shadow on the gov't? How would anyone know to file a FOIA if they didn't have any hint of the act to start with?

censorship=bad in every case. In the end it will spiral into a world where you will see only what those with the $ want you to see. Is that the world you want?

Should it be legal? Well, we can make it illegal... but it already is illegal to cause crulity to animals for any reason. thinking an added layer of gov't censorship will stop animal crulity is euphorianistic at best, and just plain naieve. Turning the evidence of crime into another crime in itself may actualy result in more crulity.

Would you also, by the same logic, want a law against making a video of murdering your neighbor?

[Thermo]

Maybe i am not reading this right, but does anyone believe that showing examples of animal cruelty should be legal?

Yes. Being cruel to animals in the first place should be the only thing illegal - not showing it, filming it, depicting it, discussing it, mentioning it, etc... This whole mess with trying to make 'depictions' of stuff illegal is messy and dangerous and unconstitutional, sets a horrible precedent, and is a threat to the First Ammendment.

As far as crimes being committed and then being showed on TV, is it okay to say show acts of rape or torture?
(in response to the show cops, yes i think that show should be cancelled, watches a bunch of uneducated drug addicts committing various crimes is the last thing we as a society should be watching)

And I think national karaoke Gameshows, daytime talkshows, and the Disney Channel are harming society. My Dad thinks CNN is destroying America and my wife thinks Fox News is. But all of them have a right to operate, and I respect that. I think they should broadcast whatever they want. They don't bash in your door and force you to watch. But making anti-free-speech laws could have your door bashed in for watching something on the "blacklist" - which will continue to grow and grow as more and more lobbyists play these games with the constitution..

I believe that animal cruelty is one of the most disgusting acts(and in fact one of the few topics i am moved by on a personal level), causing harm to a creature for personal enjoyment shows a lack of (in my perspective) moral integrity. Its hard to believe that people on this forum actually believe their freedoms are being infringed on with a law such as this. If you are personally affected by this law i think you need to take a serious look at your life. A lack of consideration for life shows how little progress has been made in our society regarding ethics and the fact that laws must be created to enforce this shows how much further we need to go.

And many, many other people find smoking a completely disgusting act, and would not blink at making it illegal, - totally illegal, based solely on their opinions. They would deliver the exact same un-sympathetic speech to you and I while they did it. You can't make freedom-affecting decisions based on easily-manipulated emotions and opinions.

When, in the future, some agency ends up monitoring everything you say on this forum, waiting for you to show or speak of the act of smoking, or make a 'depiction' of smoking so they can raid your house and bust you, it may dawn on you that blithely throwing away the freedoms of a whole population because you wanted to stop a few people from doing something you didn't like was probably a bad idea.

[judgeposer]

Maybe i am not reading this right, but does anyone believe that showing examples of animal cruelty should be legal?

I think you've read it as everyone who has replied has - which is a reasonable reading.

That said, I could've probably found a better story on the topic because I think the author's choice of the word "depictions" misleads. It leads us to believe that a re-enactment of the cruelty is what the Court will consider, when really, the Court will consider video of the actual cruelty.

So, I think everyone's reaction that making "depictions" illegal isn't something worthy of censorship is, to a great extent, reasonable, but I think that's a misapprehension of the matter.

[mustang_steve]

BS, depictions of it means there's actual cruelty going on...which there's already a law for...so no point in making redundant laws.

[K1024]

BS, depictions of it means there's actual cruelty going on...which there's already a law for...so no point in making redundant laws.

depiction:
1. to represent by or as if by painting; portray; delineate.
2. to represent or characterize in words; describe.

its not just a filmed incident, it would even be a drawing of it, or even a story about it. Edited April 27, 2009 by K1024

[evilded777]

I'm sorry, but I put this ridiculousness in with the same BS people use to NOT allow same sex marriage: that it then opens the door for other things, like a man marrying a sheep. Enforcement of laws is always going to be a fluid, and sometimes sticky situation. But fear of how things are going to be enforced, or might be enforced, does not change the fact that things some things are plain wrong.

Believe me, I am not one to ASK for more government intervention in my life or anyone's for that matter. I think there is far too much to begin with. That being said however, I still believe that things like this should be prevented. We already prevent people for profiting off the crimes they themselves commit.

[judgeposer]

18 U.S.C. 48 states:

(a) Creation, Sale, or Possession.— 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 5 years, or both. ( Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. © Definitions.— In this section—

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and <a name="c_2">(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

Let's be sure, by "depiction of animal cruelty," Congress prohibits pictures, videos, etc., that captures the cruelty taking place. We're NOT talking about re-enacted depictions, like some History Channel or America's Most Wanted re-creation. We're talking about the actual footage capturing the cruelty taking place.

So...to reframe, the question presented to the Supreme Court is: Is 18 U.S.C. 48, on depictions of animal cruelty, facially invalid under the Free Speech Clause of the First Amendment? To ask this question another way, Are depictions of animal cruelty (see legal definition above) protected by the First Amendment?

[Sonthert]

In the movie Deer Hunter, they show a full impact deer hunting scene. Full impact implying you see a deer being shot with a bullet and dying.

So will we ban the movie, now? Its a great movie.

I should just point out, humans are animals too. Will we be banning movies with violence or cruelty to humans in?

Of course it should be protected speech. That law is so vague, it could be used to ban anything movie wise. I would argue that capital punishment is cruel (but not unnecessary), so will there be no more depictions (artists renderings) of executions.

As we know Jason, when we allow the government to infringe on one of our rights, no matter how small or how incrementally reasonable the infringement may seem, it opens the door to other violations.

[BBKakes]

I like how even the exception clause is silent on who determines the "serious value" of a scientific, et al depiction. What this effectively means to me is that Big Brother will let Pat Robertson depict the sacficing of Lambs in the book of Isaiah on the 700 Club because it has serious religious "value", but Big Brother will hit the dump button when someone eats a live octopus in the film "Old Boy" because he can deem it to have no serious artistic "value". Awesome.

[judgeposer]

I like how even the exception clause is silent on who determines the "serious value" of a scientific, et al depiction. What this effectively means to me is that Big Brother will let Pat Robertson depict the sacficing of Lambs in the book of Isaiah on the 700 Club because it has serious religious "value", but Big Brother will hit the dump button when someone eats a live octopus in the film "Old Boy" because he can deem it to have no serious artistic "value". Awesome.

"Big Brother" doesn't decide whether material is obscene - at first at least, or sorta. I mean, there's reason to worry about how these things get determined, but, whether material is obscene, which means that it, in part, lacks "lacks serious literary, artistic, political, or scientific value," and this, among two other considerations are first determined by a jury at the trial level.

The courts assesses obscenity through a three-prong test that it tasks juries, generally, to ask:
(1) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

A trier of fact (aka a jury) must ask whether the expression in question satisfies these three prongs. If that
trier answers each prong affirmatively, then the expression in question falls into the unprotected category of obscenity. More simply, in order for expression to fall outside the First Amendment's protection, it must satisfy each prong of the test. Edited April 30, 2009 by judgeposer

[BBKakes]

I like how even the exception clause is silent on who determines the "serious value" of a scientific, et al depiction. What this effectively means to me is that Big Brother will let Pat Robertson depict the sacficing of Lambs in the book of Isaiah on the 700 Club because it has serious religious "value", but Big Brother will hit the dump button when someone eats a live octopus in the film "Old Boy" because he can deem it to have no serious artistic "value". Awesome.

"Big Brother" doesn't decide whether material is obscene - at first at least, or sorta. I mean, there's reason to worry about how these things get determined, but, whether material is obscene, which means that it, in part, lacks "lacks serious literary, artistic, political, or scientific value," and this, among two other considerations are first determined by a jury at the trial level.

The courts assesses obscenity through a three-prong test that it tasks juries, generally, to ask:
(1) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

A trier of fact (aka a jury) must ask whether the expression in question satisfies these three prongs. If that
trier answers each prong affirmatively, then the expression in question falls into the unprotected category of obscenity. More simply, in order for expression to fall outside the First Amendment's protection, it must satisfy each prong of the test.

Oh Shit, its left up to the public to decide (and those who are not even creative enough to get out of jury duty).. that's even worse...