pageok
pageok
pageok
Third Circuit Rejects Proposed New "Depiction of Animal Cruelty" First Amendment Exception,

by a 10-3 en banc vote (U.S. v. Stevens). Here's my summary of the issue from when I blogged about another such case last year, though I've revised it slightly.

The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... 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 [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting or dogfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting or dogfighting was legal in the place (say, Puerto Rico or Japan) in which the video was created.

The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.

But the statute is written much more broadly than that. On its face, the statute would also punish, depending on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value" (emphasis added):

  • A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.

  • A magazine with photographs of people illegally killing endangered species in a foreign country.

  • A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).

One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."

Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.

The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.

The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

  1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;

  2. a ban on production will thus be very hard to enforce;

  3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,

  4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

  1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.

  2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.

  3. The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)

This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.

Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view, and the Third Circuit decision suggests the risk of spread isn't that high, though note that the 3 dissenters did indeed rely heavily on Ferber as justification for carving out a new exception here.) But one shouldn't pretend that the slippery slope risk doesn't exist.

Related Posts (on one page):

  1. Animal Cruelty and the First Amendment:
  2. Third Circuit Rejects Proposed New "Depiction of Animal Cruelty" First Amendment Exception,
ReaderY:
I don't see why a state or Congress can't consistently with the First Amendment, prohibit killing animals for entertainment purposes. If it can do that, it can prohibit aiding and abetting, conspiracy, etc. It strikes me as very easy to construct a law structured to address the act of cruelty rather than the communication that get at the relevant harm. The Supreme Court has long upheld laws against bear-baiting and other practices involving cruelty to exhibit animals, and repeatedly re-affirmed the old cases in modern First Amendment cases. The First Amendment has never been construed to protect such conduct.

The old bear-baiting cases make it clear that one can prohibit the entertainment when it's part of the cruelty. Moreover, one can pierce corporate veils etc. to get at collusion in illegal conduct and protection for imported goods is less than domestic expression. Given that, it shouldn't be difficult to construct a law to suppress "crush videos" that passes constitutional muster.
7.18.2008 7:00pm
PLR:
The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens.
Words fail me.
7.18.2008 7:36pm
Clayton E. Cramer (mail) (www):
Words fail you. They don't fail me. This is what happens when sexual perversion becomes the dominant driving force in a society. Do you remember when homosexuality was considered a little weird? And now we have to deal with people who get a sexual thrill from walking high-heeled women crushing animals to death. What's next? Videos depicting naked, pretty women being ripped apart by lions?

In a society where there is no right and wrong, and everything is permissible, how can you object to "crush videos" except as an animal rights problem?
7.18.2008 8:05pm
Bruce Hayden (mail) (www):
Maybe I am a bit harsh, but I don't see the problem with crushing insects, or maybe even mice. I would add deer too. All sorts of vermin. Okay, maybe not crushing mice, deer, and kittens. But traps for the mice? Fine with me.

I probably didn't start to hate some types of insects until I spent some time in Austin with the fire ants there. Yesterday, I ran into a woman who had also spent some years there, and when I mentioned them, she told the story of almost having to have their dog put down because of the fire ants. I have almost as many memories of dealing with them as I do about work there. Indeed, I didn't celebrate the grass stopping growing in the fall, but rather, the fire ants stopping spreading. It seems like I would spend 5 or 6 months a year killing them however I could, and would barely keep even.

My memories of mice aren't much better. If you live in the mountains of Colorado, they are a problem twice a year. If you set out traps, you may need to discard one or two a day. And if you don't, you soon find them, and their shit, everywhere.

So, I don't have much sympathy for these animals. And, so, I would probably be quite happy watching crush videos of them dying.

Sorry.
7.18.2008 8:05pm
Clayton E. Cramer (mail) (www):

I don't see the problem with crushing insects, or maybe even mice.
Do you see a problem with people getting a sexual thrill from watching this?
7.18.2008 8:14pm
Arvin (mail) (www):
Words fail you. They don't fail me. This is what happens when intolerance and meddling become the dominant driving force in a society. Do you remember when zombies were considered evil, and a little weird? And now we have to deal with people who believe a Jewish zombie is the savior of the world and tells us how to live our lives. What's next? Someone telling me I can't drive a car because the hamster running it is getting tired?

In a society where we like to tell people that they can't sleep with other consenting adults, how can we be surprised when people turn to alternative ways of getting aroused?
7.18.2008 9:34pm
Jaypher (mail):
Only Clayton Cramer could have gotten us from dogfighting videos to homosexuality in three short comments.

Words fail me.
7.18.2008 9:44pm
Fub:
Clayton E. Cramer wrote at 7.18.2008 7:14pm:
[quoting Bruce Hayden at 7.18.2008 7:05pm] I don't see the problem with crushing insects, or maybe even mice.

Do you see a problem with people getting a sexual thrill from watching this?
I think Thomas Babington, Lord Macaulay noted this same rationale quite a while back:
The Puritan hated bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators.
-- History of England. Vol. i. Chap. iii.
That said, I abhor cruelty to any creature, and I find bullfighting disturbing. I don't see any significant difference between bullfighting and the material discussed here. In both cases humans injure and kill animals, just for some kind of pleasure in the act.

I just think there is a slippery slope inherent in the rationale that spectators' pleasure should be the basis for laws prohibiting cruelty to animals. There are people, PETA nuts admittedly (at least for the moment), who argue that merely keeping domestic animals is cruelty. Their argument is bolstered if the spectator's pleasure determines cruelty.
7.18.2008 10:11pm
Lior:
Criminalizing killing animals for the entertainment value is fine (if probably a state matter). But criminalizing the trafficking in depictions of conduct that was legal where the images were produced is rather iffy.

Smoking pot is legal in the Netherlands; dogfighting is legal in Japan. Both are illegal in most of the US. Does that mean that films showing pot smoking in Amsterdam or dogfighting in Tokyo can be banned?

I'm even more confused by the logic of "since we can't tell when and where a crush film was made, we must outlaw it altogether". Shouldn't we err on the other side?

Mr. Clayton: I have a problem with people causing unnecessary pain to mice. Whether a degree of pain is "necessary" depends, of course, on the motive: we should accept greater pain in mice afflicted with cancer during medical research than in mice killed for their meat, but both should be legal. I think hurting mice for fun is not sufficiently "necessary"; however, I can't agree that sexual gratification is somehow worse than intellectual gratification or emotional gratification.

More importantly, I simply cannot fathom why in your mind these issues have anything to do with the private actions of consenting adults. Could you elaborate?
7.18.2008 10:22pm
Johnny44 (mail):

The old bear-baiting cases make it clear that one can prohibit the entertainment when it's part of the cruelty. Moreover, one can pierce corporate veils
etc. to get at collusion in illegal conduct and protection for imported goods is less than domestic expression. Given that, it shouldn't be difficult to
construct a law to suppress "crush videos" that passes constitutional muster.

1. Just because speech may be the product of an unlawful transaction does not grant the government the power to ban its depiction. Otherwise, Congress could construct a law around killing members of law enforcement and make distribution of which unlawful. The next step, when enforcement of the ban on sale or distribution, became difficult to enforce would be banning possession.
2. The First Amendment is not limited to domestically produced speech. Congress could not ban the importation of works by Shakespeare just on the rationale that the book travelled in foreign commerce.
3. The First Amendment does not distinguish between speech made or sold for entertainment or recreational purposes, the court so held in Winters v. New York (1948.
7.18.2008 10:25pm
Evelyn Blaine (mail):
The list of great films that might fall foul of such a ban is huge: Au hasard Balthasar, Apocalypse Now, Invocation of My Demon Brother (in which Mick Jagger's cat is thrown into a fire), Land Without Bread. (But I suppose Le sang des bĂȘtes, the greatest and perhaps most disturbing such film, would be okay, since slaughterhouses are legal in the U.S.)
7.18.2008 10:26pm
Evelyn Blaine (mail):
Actually, the case of Land without Bread (Buñuel stages a donkey falling off a cliff) raises an interesting point of interpretation: if one intentionally maims or kills a live animal, but edits the film in such a way that it appears to be film of an accident happening to an animal, does this count as a "depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed"? Maybe not: it seems more like a depiction of an accidental animal death made by means of "conduct ... etc.". If so, that would be an interesting disanalogy with the child pornography law.
7.18.2008 10:33pm
HLSbertarian (mail):

Do you remember when homosexuality was considered a little weird? And now we have to deal with people who get a sexual thrill from walking high-heeled women crushing animals to death.


No one's asking you to deal with any of it. In fact, from your comments it seems like you probably shouldn't try.
7.18.2008 11:39pm
Should be bar studying:
Arvin: Well played, sir.
7.19.2008 1:19am
Dave Hardy (mail) (www):
If anyone has some of those high-heeled women around, could you give them my email? For weeks I've been waging a war against packrats here, who will chew up electrical lines, gnaw thru wooden walls, and spread disease. And form nests lined with cactus needles.

My energies are limited, however, if someone else viewed it as jollies rather than labor, they might be able to carry on. High heels, indeed footwear, are optional. They are welcome to stomp them, blow them up, beat them with bats, fire them from catapults, impale them on flaming stakes, and do anything else that does not violate the zoning codes.

I shall personally abstain from all such kinkiness, because Babette the Love Ewe expects it.
7.19.2008 1:55am
Thomas_Holsinger:
I am a 1971 graduate of UC Santa Cruz, whose mascot is the large, yellow, and quite icky when stepped on, banana slug. During long boring rainy winter quarters we used to collect the puppies for the purpose of doing unmentionable things to them. This practice has since fallen into disuse, probably because there are now better things to do during the rainy season.

And we didn't have U-Tube then. I can't wait, however, for someone to criminalize such a practice. The ensuing legal mess would certainly enliven those long boring rainy winters.
7.19.2008 2:18am
Tony Tutins (mail):

[banana slugs]

Did you ever try salting them?

Unfortunately for the banana slugs, they are not mammals nor even vertebrates. Therefore they will receive scant compassion.

Would this statute prohibit PETAphiles from displaying their graphic posters of skinned rodents at shopping centers every Day-after-Thanksgiving? I would support that.
7.19.2008 2:36am
iambatman:
It took a lengthy law review article from Professor Volokh to show how belief in slippery slopes can be rational. It took a short, bigoted post from Clayton to show how belief in slippery slopes can be fallacious (fellatios?).
7.19.2008 3:23am
Visitor Again:
And now we have to deal with people who get a sexual thrill from walking high-heeled women crushing animals to death.

No, Clayton, we don't have to deal with them. We can just ignore them. Have you no self-discipline?
7.19.2008 6:27am
pete (mail) (www):
There is also the Werner Herzog film Even Dwarfs Started Small (Auch Zwerge haben klein angefangen) in which a live pig is slaughtered, insects are stabbed to death, chickens are used as projectiles, there is cock fighting, and to top it all off a monkey is crucified. And this is all done by dwarfs, one of whom just stands there rocking back and forth while laughing maniacally.
7.19.2008 11:10am
Dennis Nicholls (mail):
Boy this statute sounds overbroad to me. I wonder how they work out the exception in part (b).

How many times have I seen a PBS Nature documentary that shows a snake or a lion or an alligator killing and eating prey. Is the staff of PBS going to be frog-marched off to Leavenworth?

How about the classic Sony/Columbia Pictures DVD of Francesco Rossi's "Bizet's Carmen"? The introduction of the film - and of the opera - has the overture playing over opening credits over a real-life bullfight. The bull gets the sword, keels over, and is dragged off the arena by a team of horses.

How about Francis Ford Coppola's "Apocalypse Now", which has an ox being cut up with a machette towards the end?

Rats. Now I have another opinion to read and I was hoping for a weekend off.
7.19.2008 2:04pm
Toby:

That said, I abhor cruelty to any creature, and I find bullfighting disturbing. I don't see any significant difference between bullfighting and the material discussed here. In both cases humans injure and kill animals, just for some kind of pleasure in the act.

There are many government programs that have been shown not to work, and even ones that foster dependency and thus unhappiness amongsth their victims, the poor. And yet many want so continue these programs simply because they make those who advocate them feel better about themselves. How is this any different than bear baiting?

I look forward to banning and discussion of or advocacy for such programs...

(gee, defining thought crimes is fun!)
7.19.2008 4:39pm
CiarandDenlane (mail):
"But the signing statement isn't part of the law, and is certainly not binding on later administrations."

Does that have to be right? Judges seem to think that their institutional authority is increased if they are willing to be bound by their predecessors' views.

Would the executive branch be well served if presidents were willing consistently to reason something like this: "Congress passed a law, the original public meaning of which was ambiguous. It could have plausibly been interpreted as meaning either narrow meaning A or broader meaning B. I was in Congress at the time, thought it meant B, and would have voted for it with either meaning (narrow meaning A is better than nothing, though I prefer the more aggressive approach of B). My predecessor as President, however, indicated in his signing statement that he thought it meant A (wrong but also plausible, in my opinion), that he was willing to sign the bill with that understanding, and that he would have vetoed it had he construed it to mean B. Unlike comments of a single legislator, those are not the views of 1 of 100 or 1 of 435 individuals whose consent are necessary, but the clearly stated view of a branch of government whose consent is constitutionally required. If Congress meant B, it could have written the law more clearly before presenting it to the President or after being confronted with the signing statement. I still favor the broader approach of B, and would sign such a bill into law should the current Congress present such a bill to me for consideration. As matters now stand, however, I recognize that a law with meaning B has never received the assent of the Executive that is constitutionally required. My predecessor's directions to the agencies on the implementation of the statute he, not I, consented to on behalf of the Executive, remain in effect."

I didn't add somewhere in that hypothetical "and, I recognize that, had my predecessor vetoed the bill, the veto would have been sustained." I'm not sure my hypothetical president who wants his signing statements to live beyond his administration puts that in a speech like the one above, but if this variant makes the case easier or more difficult . . . .

Perhaps this is too hypothetical to occur in a political, rather than non-political branch like the judiciary. A Democratic President and a Republican President may be divided more by party than they are by institutional interest of the Executive (even if, a big assumption, giving signing statements the kind of weight hypothesized above would be in the Executive's interest).
7.19.2008 8:20pm
darvon:
IANAL, but if I am reading this right, we just outlawed "Bambi"?
7.19.2008 10:08pm
darvon:
Can someone tell me how child pornography exception, which creates the exception due to the manner of production, handles animation/CGI?
7.19.2008 10:11pm
Sean M:
darvon,

It doesn't. An "element" of any child porn conviction in the wake of Ashcroft v. Free Speech Coalition is proving that the children depicted are real children rather than CGI/animation.

That doesn't take much, because CGI/animated child porn is very hard to do convincingly (that is, in a manner that it does not look fake). But it is a requirement for just the reason you point out. "Virtual" child porn cannot serve as the basis for a child porn conviction.
7.19.2008 10:20pm
Fub:
Toby wrote at 7.19.2008 3:39pm:
I look forward to banning and discussion of or advocacy for such programs...

(gee, defining thought crimes is fun!)
Huh? I'm not sure how my objection to using the spectator's pleasure to define a crime becomes a basis for defining a thought crime.
7.19.2008 11:51pm
whit:

That said, I abhor cruelty to any creature, and I find bullfighting disturbing. I don't see any significant difference between bullfighting and the material discussed here. In both cases humans injure and kill animals, just for some kind of pleasure in the act.



Just for the record. At least in several jurisdictions, including mine, killing an animal, as long as it not done tortuously is perfectly legal and is not considered cruelty to animals.

For example. It is 100% legal to take your cat, dog, or whatever into your backyard and kill it. You don't need a reason/justification.

That's not animal cruelty. If somebody called me to complain that his neighbor just killed his own cat, I would inform him that was perfectly legal.

Since cruelty to animals is a crime, I thought we should distinguish the difference between CRUELTY (which at least in many jurisdictions is causing unecessary suffering whether or not you kill it) and killing.

Criminalizing the dissemination of images of something that is perfectly legal seems strange.

Otoh, it is illegal to disseminate images of sex with 16 yr olds, but perfectly legal to HAVE sex with 16 yr olds (in my state and many others) so maybe it is NOT that strange.
7.20.2008 4:28am
Marc J. Randazza (mail) (www):
The whole "crush videos" issue is a red herring. If the genre exists at all, "Estimates vary, but it is believed that less than 2,000 people worldwide are participants or viewers of crush videos." Source

Don't get drawn in by the salacious - it is there to serve as a distraction.
7.20.2008 12:35pm
CiarandDenlane (mail):
Are 2,000 folks scattered around the world enough to support the "brisk business" in crush videos the court quotes Congress being worried about? Long tail?
7.20.2008 3:24pm
Ryan Waxx (mail):

At least in several jurisdictions, including mine, killing an animal, as long as it not done tortuously is perfectly legal and is not considered cruelty to animals.


Wouldn't killing them for the purpose of creating a video be considered evidence of cruelty?
7.21.2008 9:08am