In a major free speech victory, the Supreme Court has ruled in the Stevens cases — striking down a law designed to punish the sale of dog fighting and so called “crush films.” The vote was 8-1.
This case focused on a federal law criminalizing sale or possession of such images. The Court found it was an unconstitutional limitation on free speech, a decision I strongly agree with.
These films discussed earlier often show animals being crushed or bitten for a group of people with sadistic and subhuman tastes. However, it may also present the ultimate question of free speech. States are moving toward treating the sale and even possession of such images as a crime.
In this case, the court of appeals also found that the law unconstitutionally restricted speech. For the story and Third Circuit opinion, click here. Judge Brooks Smith wrote: “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.”
The civil liberties concern is the degree to which the government can criminalize the content of picture, emails, and publications. Animal cruelty is a broad potential category of restricted speech. The federal law defines it in the following way:
(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 . . .
This would obviously include any cockfighting or dogfighting videos. It notably also includes auditory depiction and could include small audio clips interpreted as cruel under this definition. There is an exception for “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” That would appear to exclude religious sacrifices. However, this standard can be read broadly or narrowly. What does “serious” mean? A serious religion or artist or journalist is a matter of considerable debate. Does this include the harming of animals for films when it is not necessary to do so but the director wants gritty reality?
Chief Justice Roberts wrote the majority opinion. Only Justice Alito dissented. Roberts noted that the law “creates a criminal prohibition of alarming breadth” and said that the Court was not willing to uphold the law “merely because the government promises to use it responsibly.”
In a remarkably strong opinion, Roberts rejected the government’s overall claims:
The Government thus 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.” Brief for United States 8; see also id., at 12.
As a free-floating test for First Amendment coverage, that sentence is 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 social 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. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Cranch 137, 178 (1803).
Here is the opinion: Stevens Decision
Matt:
“For those of you emotional laymen convinced that the Supreme Court has decided to condone the ruthless torture of animals in the name of free speech:”
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I’d be cautious of alienating those “emotional laymen” who will one day pay your fees. You remind me of the CEO from Texaco who ruthlessly avoided a witness subpoena in the famous Pennzoil v. Texaco case tried by legendary trial lawyer, Joe Jamail. Finally getting the reluctant CEO to the witness stand as an adverse witness, Jamail asked this captain of industry to explain the circumstances that led to Texaco’s interference with the oil contract between Pennzoil and Getty Oil. Said the incensed, put upon, oilman, “Well, it’s very complicated and beyond what any average person could possibly understand, Mr. Jamail.” Quipped Jamail, “You mean like the average folks on that jury sitting over there?”
The jury returned a verdict against Texaco for 10.53 billion dollars.
For those of you emotional laymen convinced that the Supreme Court has decided to condone the ruthless torture of animals in the name of free speech:
Familiarize yourself with First Amendment doctrine or statutory interpretation. The Court struck down 48 because it was substantially overbroad and included in its sweep a startling amount of protected speech. If Congress wanted to ban crush videos, it could have easily done so by banning CRUSH VIDEOS-not the “depictions of animal cruelty” which is obviously far broader. Crush videos are almost certainly unprotected speech, either under an analogy to the Ferber factors (where the Court decided that child porn was categorically unprotected by the First Amendment), or probably under an obscenity theory.
The Court isn’t condoning animal cruelty-it’s protecting the First Amendment from a substantially overbroad statute. As uninformed pundits with access to an online forum, some of you should appreciate that.
For those of you emotional laymen convinced that the Supreme Court has decided to condone the ruthless torture of animals in the name of free speech:
You’re obviously not familiar with either First Amendment doctrine or statutory interpretation. The Court struck down 48 because it was substantially overbroad and included in its sweep a startling amount of protected speech. If Congress wanted to ban crush videos, it could have easily done so by banning CRUSH VIDEOS-not the “depictions of animal cruelty” which is obviously far broader. Crush videos are almost certainly unprotected speech, either under an analogy to the Ferber factors (where the Court decided that child porn was categorically unprotected by the First Amendment), or probably under an obscenity theory.
The Court isn’t condoning animal cruelty-it’s protecting the First Amendment from a substantially overbroad statute. As uninformed pundits with access to an online forum, many of you should appreciate that.
Gordon Freeman:
“Again, advocating free speech is about defending speech with which you disagree. I may not want my children to see sexual images, but I’ll fight to defend my neighbor’s right to show his children whatever he wants. To say someone is for “balanced” free speech misses the point.”
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I think you are actually advocating absolute free speech. I wonder how tolerant you would be if your neighbor showed his children sexual explicit obscene materials and his impressionable children then tried to practice it on your kids? Bottom line is that no Founding Father ever advocated unfettered individual rights, and most understood that with individual freedoms comes the duty to act responsibly. As is oft quoted, the Bill of Rights is not a suicide pact. John Stuart Mill defined the limits of free speech to extend until the expression resulted in harm to another or posed the substantial likelihood of harm. That seems a workable compromise between absolute free speech and “permitted” speech.
“What about the person who downloads dog fighting or crush video footage from the internet, burns said footage to a DVD, and opens up a website to sell it?
In this case, the merchandise is not illegal. ”
Isn’t it? In New Hampshire you can buy fireworks but you have to sign a paper that says you will not discharge them in that state…people do, but they understand that the liability falls on them. I have always thought that was the most ridiculous end run around the law but it propped up a lucrative industry and protected the guys who were selling merchandise that would not otherwise be legal to sell from all kinds of liability. This strikes me as hypocrisy, I’m such a hardass I guess….
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““Since when is Speech allowed that advocates illegal acts?”
Since always. Wasn’t that an integral part of the civil rights movement?
Let’s say an unjust law were passed. Shouldn’t we be allowed to speak against it? Or let’s say someone wanted to prove that animals don’t feel pain in the same way that humans do.”
Is speaking out for or against something the same as practicing that thing? I’m not gay but I support others rights to express themselves sexually in that manner. I think if a crush film producer had to actually utilize thier free speech regarding the creation of these films before they made them….well they probably wouldn’t be such an issue would they?
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Mike A,
I don’t see how this ruling is consistent with a prohibition of possession of child porn. In what way was this law overly broad compared to the statute against possession of child pornography? I’m not trying to be argumentative here, I just don’t understand.
mespo:
To clarify, I’m not advocating free speech as defined by the Supreme Court, but as defined in the more general sense. Certainly there are numerous limitations on free speech in America (and just about everywhere else), but I disagree with your statement that this, “does not, in any way, reduce the value of the right nor impede its essential purposes.” There is an inherent value to the free transfer of information even when there are seemingly compelling reasons to restrict it, as in your examples.
Trespass is its own crime separate from the possible intent of the trespasser.
What is obscene is a matter of taste, for guardians to decide, and has no business in law. It’s entirely possible that someone might choose to teach his children about sex with images some would deem obscene, for instance.
Regarding individuals and businesses conspiring to commit crimes, I refer to my previous statements on advocating illegal acts.
Again, advocating free speech is about defending speech with which you disagree. I may not want my children to see sexual images, but I’ll fight to defend my neighbor’s right to show his children whatever he wants. To say someone is for “balanced” free speech misses the point.
Gordon Freeman:
BLoiuse: “I am for free speech, but it needs to be balanced against other concerns.”
This is a contradiction. If there is any balancing, it becomes permitted speech, not free speech.”
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Not really. The right is not an absolute right; thus balancing it against compelling state interests such as secrecy of troop movements in time of war or protecting minors from obscenity is appropriate. Likewise, the government may enforce laws of trespass preventing speakers from invading my living room to proselyte me as to the rightness of their cause. Criminals are not free to conspire to commit crimes using free speech either, nor are businesses allowed to meet and discuss collusive pricing or establish monopolies. There are a myriad of limitations on free speech which does not, in any way, reduce the value of the right nor impede its essential purposes.
“I am for free speech, but it needs to be balanced against other concerns.”
This is a contradiction. If there is any balancing, it becomes permitted speech, not free speech.
“Since when is Speech allowed that advocates illegal acts?”
Since always. Wasn’t that an integral part of the civil rights movement?
Let’s say an unjust law were passed. Shouldn’t we be allowed to speak against it? Or let’s say someone wanted to prove that animals don’t feel pain in the same way that humans do. Shouldn’t he or she be allowed to make that argument without interference? I’m in no way advocating that argument, and I’m confident that such an argument would be quickly disproven, but in the extremely unlikely event that that’s true I like knowing that no law will prevent me from learning that fact.
What about the person who downloads dog fighting or crush video footage from the internet, burns said footage to a DVD, and opens up a website to sell it?
In this case, the merchandise is not illegal. The producer of the original footage could be charged with animal cruelty…if you could find them. It’s not as if an individual who produces dog fighting films or crush videos is going to file a copyright claim identifying themselves as the source of the video and thus exposing themseleves to an animal cruelty charge.
Lastly, I disagree with the assertion that it is easier to track down the makers of dog fighting videos. Yes, I’m sure there are some fools who are so proud of their exploits, they will identify themseleves online. In the digital, global internet age, what prevents distribution of dog fighting videos and crush films from other countries that don’t have animal cruelty laws? This ruling unquestionably sustains, and likely expands, a market in which animals are tortured.
PS. It appears the justices are a little technology challenged. It makes me wonder if they understand all the aspects of the kinds of cases.
From DC Dicta (http://lawyersusaonline.com/dcdicta/2010/04/19/technical-difficulties-at-the-supreme-court-2/):
The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. – who is known to write out his opinions in long hand with pen and paper instead of a computer – asked what the difference was “between email and a pager?”
Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.
At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.
“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.
“I would say in this watching-animals-being-killed-for-sexual-stimulation situation, unlike the dog fighting films, you could justify banning the films because the likelihood of stopping the cruelty is very high. Dog fights will always continue and stopping dog fight films will not stop dogfights. A very complex issue. ”
Yes!
But how about this….these activities are illegal, therefore filming them for the express purpose of distributing and/or personal use is
dependant on the commission of an illegal act…therefor illegal.
Am I oversimplifying or is this not complicated at all?
And yet we haven’t fallen into totalitarianism since the myriad of free speech restrictions that we do have were first put on the books. Somehow we have managed not to fall into oblivion despite the fact that you can’t see boobs on TV. ( Not that censorship is a good thing)
On the other hand, The Supremes have just said that limiting campaign contributions by corporations is an unconstitutional abridgment of their free speech rights. If anything has been leading us off course as a nation is the corruption of our political system by monied interests.
Absolutism in the cause of free speech is neither demonstrated in the U.S. nor completely desirable, IMO.
I suggest that we’re losing sight of the point. I’m not suggesting that it is impossible to craft a constitutional statute regarding the display of animal cruelty, nor did the Court in this case. But what the Court was ruling on was a classic example of overlybroad drafting.
The USSC was NOT condoning crush videos or animal cruelty. What they WERE doing was preventing the perversion of the US Constitution which was being used to ‘bootstrap’ the prosecution of a citizen for distributing videos that society currently finds repugnant.
If the Federal Government can manipulate the Constitution to prosecute people for doing things that are not illegal but are socially repugnant, we might as well feed that document into the paper shredder and practice some military salutes. Our adherence to its principles–especially in instances we find distasteful–is the only thing that’s kept this nation remotely on course for the last 234 years.
As for me, I find the US Government’s attempt to illegally prosecute a US Citizen even more repugnant than the crush videos he was distributing.
I just read the decision and the majority opinion makes a careful distinction between kitten snuff films (which was NOT the factual situation presented before the court) and the dog fight videos, which was the issue in the Stevens case. The court seems to be saying that if banning a film could be proven to stop animal cruelty, the ban would be upheld under the 1st amendment.
The issue before the Stevens court was dog fighting. Not only will banning films of dog fighting not stop dog fighting, but they point out that it’s easier to track down the people who actually conduct the dog fighting and prosecute them under state anti-cruelty laws. They say that the kitten snuff films are “anonymous”, implying correctly that there’s no way to track down these people. My guess from the hints dropped in the case (or reading between the lines is that the statute could be rewritten to ban the small animal sexual stimulation snuff films, which are really just a form of pornography.
I guess the “lesson” is that the lives of innocent animals are not as worthy of protection as the safety of children. Some people might disagree with that. I don’t know whether child pornography feeds child molestors. I guess that’s the rationale for laws banning even possession of child pornography. It prevents child molestation.
The sexually oriented animal cruelty films are different. If you outlawed the kitten snuff films, there wouldn’t be any kitten snuffing because the people who watch these things don’t get off on snuffing kittens per se, they get off on watching women with spike heels snuffing kittens. I would say in this watching-animals-being-killed-for-sexual-stimulation situation, unlike the dog fighting films, you could justify banning the films because the likelihood of stopping the cruelty is very high. Dog fights will always continue and stopping dog fight films will not stop dogfights. A very complex issue.
Like the previous poster said, the law may have to be tightened up a bit to pass muster. I am for free speech, but it needs to be balanced against other concerns.
Fightin dogs and duble naught spies are just too big to jail …
http://blogdredd.blogspot.com/2010/04/democracy-school-too-big-to-jail.html
I have a bit of a gut feeling that the “free speech” thing here is a bit of a red herring and have very mixed feelings about this. It’s potentially a right bag of adders.
The sale of this material (legal) means there is a market and therefore money to be made from activities that are illegal. Surely this decision will only lead to more illegal dog fights and animal cruelty taking place.
But hang on a tick. What about such material which was produced in countries where animal fighting is perfectly legal? My head is starting to hurt…
I absolutely believe in free speech. I just don’t buy it that this falls under that purview. Are snuff films free speech?
This is psychotic BS.
I am not squeemish and i’ve seen some nasty behaviors, human to human….but I agree with rafflaw, and may there needs to be a discussion of what constitutes expression. I doubt that crushing living beings would pass muster.
I am never surprised anymore with this Supreme Court. I understand the argument, but as Mespo stated in response to Mike A., these films will do nothing but encourage others to partake in an illegal and immoral act. Since when is Speech allowed that advocates illegal acts? Maybe if we put the films in a Free Speech Zone, then I could agree with them! I have said it in other threads, if they can force all of us to only protest in free speech zones, how can films advocating and showing actual dogs being cruelly treated be allowed anywhere and at anytime?