Fido’s Bark Sounds Suspiciously Like “Activist Judges!”

Heather Horn at The Atlantic:

Robert Stevens of Virginia made videos about pit bull fights. He was prosecuted under a law banning depictions of animal cruelty–”a 1999 law intended,” in the words of the Associated Press, “to limit Internet sales of so-called crush videos, which appeal to a certain sexual fetish by showing women crushing to death small animals with their bare feet or high-heeled shoes.”

On Tuesday, the Supreme Court struck down that law, ruling that in its “overbreadth” the law violated the First Amendment right to free speech.  Of course, the Supreme Court isn’t declaring animal cruelty legal–there are still plenty of state laws banning such cruelty. But the effective re-legalization of animal-cruelty videos is sure to upset animal rights groups. So what was the court thinking? Here’s a summary of the developments, in which all but one of the justices decided this law went too far.

  • Why This Law in Particular Is Unconstitutional Determining which categories of speech can and can’t be banned, argues Chief Justice Roberts for the court, should not be a matter of cost-benefit analysis: “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.” The court decided child pornography was exempt from First Amendment protection only because, in that case, “the market for child pornography was ‘intrinsically related’ to the underlying abuse.” Though one might argue that the market for crush videos is similarly related to the underlying abuse, this law forbids far more than crush videos.

However “growing” and “lucrative” the markets for crush videos and dogfighting depictions might be … they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of [the law in question]. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that [this law] is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.

  • That’s Ridiculous This ruling, writes Justice Alito in dissent, “has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production.” The case under discussion is about dogfighting, and the courts should be deciding “whether the videos that respondent sold are constitutionally protected.” But even if the courts do feel the need to rule on the question of the law’s “overbreadth,” he still doesn’t think this law “bans a substantial quantity of protected speech.”

SCOTUSBlog:

While the Court conceded that Congress had passed the law to try to stop interstate trafficking in so-called “crush videos,” showing the actual killing of cats, dogs and other small animals by stomping or other intensely cruel methods, it said the resulting law itself reached far more than that kind of portrayal.  Limiting the law’s reach to those depictions, the opinion said, would require the Court to give “an unrealistically broad reading” to the exceptions Congress wrote into the law.

As written, the Court said, the law “creates a criminal prohibition of alarming breadth.”  Noting that the government had given assurances that it would enforce the law only against commercial portrayals of “extreme cruelty,” the Chief Justice wrote that the Court would not uphold an unconstitutional law “merely because the government promises to use it responsibly.”

The Justice Department had defended the law by arguing that portrayals of animal cruelty, as a group, simply had no protection at all under the First Amendment, in the same way that obscenity, libel and fraud are unprotected.  The Court rejected that argument, saying that the 1999 law regulates expression of the basis of its content, its message. That makes the law invalid under the First Amendment, the Court said, unless the government can overcome that presumption.

Roberts wrote: “The Government proposes that a claim of categorical exclusion should be considered under a simple balancing test: ‘Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”  Calling that “a free-floating test for First Amendment coverage” and a “highly manipulable balancing test,” the Chief Justice said the test was “startling and dangerous.  The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits.  The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.  Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Recalling its precedent putting child pornography outside the First Amendment, the opinion said that the Court had done so because the depictions of such pornography was necessarily linked to actual abuse of children in the production of such materials.  That approach, and other cases discussing what the First Amendment does not protect, the Court added, “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”  While there may be some categories of speech not yet identified that could be placed outside the First Amendment, “there is no evidence that ‘depictions of animal cruelty’ is among them,” the Court said.

The Court then went on to analyze the 1999 law under traditional First Amendment principles, and found it went too far.  The law makes it a crime, with up to five years in prison, to make, seell or possess a “depiction of animal cruelty,” if any of those acts is done for commercial gain.  It defines “animal cruelty” depiction as one in which a living animal “is intentionally maimed, mutilated, tortured, wounded, or killed,” provided that the action violates a federal or state law.  The law says that it does not apply to depictions if they have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

American Constitution Society

Ed Morrissey:

The problem, as QandO’s Bruce McQuain also notes, is that the act of filming is neither violent nor criminal.  The actual violent act should result in prosecution for those who committed it, including the videographer if he was part of a conspiracy to commit illegal and inhumane acts against animals.  The videotape would make a crucial and strong piece of evidence for trial.  However, criminalizing the acts of videotaping and publishing puts other kinds of publication at risk — for instance, videos of legal hunting, among other things, or even publication of cruel acts as a means of exposing and stopping them.

However, that’s an argument that also cuts both ways.  Laws against child pornography specifically target the act of photography and publication.  The laws do not specify that a separate act of molestation or rape occur for prosecution — and most people would agree that it shouldn’t require such a basis.  Just the act of possession can result in long jail times and a lifelong identification as a sex offender.  Using the logic of this decision, wouldn’t it tend to undermine the basis for those laws as well?

Of course, the government didn’t help its case by failing to prosecute anyone under the intended purpose of the law, the purveying of “crush videos.”  The law has been in existence for eleven years, apparently resulting in no trials at all.  One has to wonder why Congress bothered to pass the law at all instead of just leaving the jurisdiction to the local and state authorities for cruelty to animals, except that it was obviously an attempt by Congress to create an artificial crisis just to look responsive to it.

Ann Althouse:

Good. This doesn’t — of course — mean that you can’t punish acts of cruelty to animals.

Balk at The Awl:

Crush videos—films in which attractive women smush small animals under their heels—are once again legal after the Supreme Court struck down a law preventing the depiction of animal cruelty. (Animal cruelty itself is still illegal in many places.) The Court, in a 8-1 decision, found the law to be an overly broad restriction that violates the First Amendment.

UPDATE: Stanley Fish at NYT

Will at The League

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1 Comment

Filed under Animal Rights, Supreme Court, The Constitution

One response to “Fido’s Bark Sounds Suspiciously Like “Activist Judges!”

  1. Pingback: What We’ve Built Today « Around The Sphere

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