In an 8-to-1 vote, the United States Supreme Court has struck down a 1999 animal cruelty law, paving the way for animal cruelty videos to fall under the blanket of First Amendment freedom of speech protection, which includes everything from criticizing the government to extolling the utility of payday loans. Reuters reports that the previous law was intended to prevent the sale of “crush” videos, a disturbing fetish niche depicting the torture and killing of small animals beneath a woman’s high-heeled shoe. Now the Supreme Court claims that the 1999 law was broad enough to make such things as bullfighting and the sale of some documentaries illegal. Concerned that this could be viewed as government censorship, the Supreme Court struck down the law as invalid under the First Amendment.
Animal cruelty and animal cruelty videos: One’s illegal, the other isn’t?
Justice John Roberts, whose 20-page opinion expressed the view of the majority regarding animal cruelty vs. animal cruelty videos, wrote that “there is no evidence of a similar tradition prohibiting depictions of such cruelty.” Thus, Robert Stevens of Virginia, who made and sold videos of pitbulls, hogs and wild boards fighting each other may very well have his 2005 conviction in United States v. Stevens, No. 08-769 (still under appeal) overturned. While Justice Department lawyers argued that animal cruelty videos should be treated like child pornography (not protected by Free Speech), the Supreme Court didn’t agree. The lone dissenting voice – Justice Samuel Alito – said “the law could be validly applied to at least two broad categories of expression: crush videos and dog-fighting videos,” according to Reuters.
Advocacy inciting lawless action
Here is the U.S. Supreme Court’s take on free speech:
“The U.S. Supreme Court has held that government may not prohibit speech that advocates illegal or subversive activity unless ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’ (Brandenburg v. Ohio, 395U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 ).”
Notice that advocacy inciting lawless action is not permitted. The common Brandenburg test cases the Supreme Court cites involve situations where politically charged or subversive speech is held to be “mere hyperbole” since they do not connote a threat “intended to be acted on at a definite point in time.” It could be argued that animal cruelty videos involve a filmmaker who is complicit in a clearly illegal act. If the real act of animal cruelty in and of itself is illegal, then why should filming such acts with the intent of taking credit card orders and deliver not fall outside free speech protection? It’s no longer a matter of intent once the act has been filmed; the illegal act has occurred. Furthermore, developing an audience for such films might be considered inciting further lawless action, as the commercial success of such animal cruelty videos could prompt parties to film future videos.
What about obscenity?
This is an area the Supreme Court has had trouble defining clearly over the years. Justice Potter Stewart once said “I know it when I see it,” which didn’t help matters. But there is the Supreme Court’s three-part test to determine obscenity:
- The average person, applying contemporary community standards, would find that its predominant theme appeals to a “prurient” interest
- It depicts or describes sexual activity in a “patently offensive” manner
- It lacks, when taken as a whole, serious literary, artistic, political, or scientific value (refers to Miller v. California, 413 U.S. 15 93 S. Ct. 2607, 37 L. Ed. 2d 419 ).
How do crush videos and animal cruelty videos stack up? The average person likely would not find that either incites sexual desire, but would they appeal to another’s prurient interest? Absolutely; it’s why they’re made in the first place. Regarding the second point, the average person likely finds both types of videos offensive. Finally, regarding a lack of value, neither type of video is literary or overtly political. However, some people could conceivably attribute artistic or scientific value to crush videos or animal cruelty videos. These are people you don’t want to know.