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Animal cruelty law threatens free speech

July 28, 2009

On the same day convicted dogfighter Michael Vick gained “conditional” reinstatement to the National Football League, a coalition of publishers, booksellers, librarians and content providers asked the Supreme Court to overturn the conviction of a Virginia man for creating videos that include scenes of fighting dogs in training.

At issue is a 1999 federal law that bans the creation or sale of a book, magazine, film or audio recording of animals being intentionally harmed or killed. Robert Stevens was sentenced to 37 months in jail for “Catch Dogs,” a video that depicted pit bulls chasing boars in organized hunts and a dog attacking a domestic pig.

An appeals court overruled Stevens’s conviction, saying that banning depictions of animal cruelty is not an effective means of prosecuting underlying acts of cruelty. The Justice Department appealed the decision, arguing “a compelling interest” in stopping those who profit from dogfight videos or similar products, particularly “crush” videos, in which women are shown stomping small animals to death.

“Obviously, we support the enforcement of federal and state laws against cruelty to animals,” said Chris Finan, president of the American Booksellers Foundation for Free Expression. “But this statute bans speech, not dogfighting. Even worse, the argument the government is using to justify the law makes this case potentially the biggest threat to free speech in a generation.”

The Media Coalition, including the Association of American Publishers, the Freedom to Read Foundation, and PEN American Center, argues the law imposes a “values” test that will open the door to legislation restricting “low value” speech simply because some people find it offensive.

Clearly that’s an intolerably subjective criteria — what’s “low value” to me may be art, or even harmless entertainment, to you.

At risk, argues the coalition, is a wide range of mainstream materials, including illustrated books, films, or magazines graphically depicting slaughterhouse practices, bullfighting or poaching. But it’s not hard to imagine the law extending to “offensive” or “low value” speech that has nothing to do with cruelty to animals.

So say goodbye to hunting and fishing shows on television. Field & Stream and Outdoor Life could become relics of the past. How about Hemingway’s The Sun Also Rises, or Amores perros, Alejandro Ganzalez Inarritu’s acclaimed movie? Once the door of censorship is opened, it could eventually encompass depictions of, say, sexuality or alternative lifestyle (so long Logo channel!), or even political speech – how many people find any criticism of the country offensive?

The Supreme Court will rule in the fall.

3 Comments leave one →
  1. July 28, 2009 1:53 pm

    I don’t know…on the one hand, I’m a pretty staunch advocate of free speech, but I’m an equally staunch advocate of the protection of animals against human cruelty.

    So I’ll say this: I don’t know enough about the facts of this specific case to feel like I could offer an opinion. But it seems to me that you’re advocating the “slippery slope” position–wherein any restrictions on free speech are considered the first in a series of steps that can easily lead to arbitrary and absolute censorship.

    As a general rule, I find the “slippery slope” argument–as an absolute position–both ethically troubling and practically unrealistic. There are any number of restrictions already on free speech: laws against child pornography, libel and slander, “fighting words” and incitement of riots such that a physical danger to an individual or community are created, etc.

    While these laws have led to some truly ridiculous and outrageous prosecutions–parents prosecuted criminally for taking photos of their own children in the bathtub, for example–what they haven’t led to is the forced closure of parenting magazines or of the “New York Times” op-ed page. The Supreme Court, rightly in my opinion, has consistently striven to tweak these laws for common-sense provisions dependent upon context rather than get rid of them altogether.

    Generally speaking, I think it’s a good thing that we as a society ban the circulation of “doggie snuff films” and other similar “products” that do nothing to strengthen political or artistic discourse but do everything to lessen us as a civilized people by making profitable that which is wrong per se. It’s possible that some hapless individuals will be unfairly prosecuted in the process, and such wrongdoing in enforcement should be our opportunity to strengthen and clarify the laws–as we’ve done over the years with our libel laws, our child pornography laws, etc.–rather than dispense with them wholesale.

    A just society is measured not only by what it permits, but also by what it deems unconscionable. I’d rather see us continue to strive for the correct balance than operate on the assumption that, collectively, we’re incapable of grasping ethical nuance.

    Also, I like puppies. And pigs are very smart. 🙂

    • Chauncey Mabe permalink*
      July 28, 2009 2:12 pm

      But when a law bans not animal cruelty, but depictions of animal cruelty, it is high time to worry about the slippery slope. In this case, James Stevens did not even film the dog fight scenes, but took them from archival footage from 30 years ago, and from Japan, where dog fighting, astonishingly enough, is legal. There are not “any number” of restrictions on free speech — there are a few well-defined ones, and I think you mention them all. The problem with the 1999 law is that it is overly broad, and its standard is too subjective. If what I think is offensive were to be banned, you’d not only lose animal cruelty videos and commercial porn, but all reality shows, most celebrity magazines, and any movie starring Will Ferrell.

  2. July 28, 2009 2:43 pm

    As I said, I don’t know nearly enough about this specific case to offer an opinion–although I will happily agree, as a matter of common-sense principle, that a person distributing archival footage, already available to the public, of what may or may not be a prohibited act should not be prosecuted, if he is prosecuted at all, as if he, himself, had committed that act.

    There are, indeed, many more restrictions on absolute freedom of speech than those I’ve listed above–at various times we’ve prosecuted people for sedition (not one my personal favorites), for invasion of privacy, we’ve issued “gag orders,” classified documents and legal/governmental procedings such that journalists and laypeople are prohibiting from reporting about them, etc., etc. There are more, but that’s not my main point.

    Here’s my main point: to say that an entire category of behavior is prohibited, such as sex with minors, but not also prohibit the products that arise from such behavior–like videos, photos, etc.–is not only to seem to say that we ethically condone those who profit from what we consider unconscionable behavior, but also as a practical matter to create a situation in which it may be financially profitable to engage in that which is legally forbidden. A troubling contradiction, to say the least.

    I think what you’re saying is that we as a people–through both our judicial system and also through our collective power as members of a democratic society–are incapable of making reasonable distinctions. You seem to be saying that we are incapable of distinguishing between a video of a man setting a dog on fire and “Field and Stream” magazine, and so it’s better to allow all of it than none of it.

    I think not only that we can make those distinctions, but that making them is what we do best. Our system was, is, and will always be imperfect, but I think overall we’ve maintained an admirable and enviable balance between protection of our weakest dependents and freedom of speech and conduct for our general population. I think that making those distinctions is part of the hard work that we have to do if we want to live in a society that is free and fair in equal measure. I think if we throw up our hands at the outset and say, “But it’s just so hard to figure these things out–and, let’s face it, most of us aren’t smart enough to do it,” then we’ll never get any closer to the kind of country we want to live in.

    I’m with you on the Will Ferrell question, however. Although “You’re Welcome, America” had some truly outstanding moments. 🙂

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