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Animal Cruelty and the First Amendment:

Are depictions of animal cruelty protected by the First Amendment? In July, the U.S. Court of Appeals for the Third Circuit held they are in a 10-3 en banc decision in U.S. v. Stevens. The decision, which Eugene blogged about here, struck down the federal law prohibiting the production, sale, and possession of depictions of "animal cruelty."

Now it looks like the case may go up, as the Solicitor General has filed a petition for certiorari in the case. Because the Court usually agrees to review decisions striking down federal statutes, I would think the chances for certiorari are pretty good.

CVMe:
Few things are certain in the Supreme Court, but I would be my house that a SG petition where the lower court held a federal law unconstitutional will be granted.
12.17.2008 1:45pm
GMUSL '07 Alum (mail):
What does one get if the court agrees to grant "cretiorari" (as used in your link)?
12.17.2008 1:47pm
Prosecutorial Indiscretion:
I think one gets referred to the sentence below that reads "If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment." :P
12.17.2008 1:54pm
martinned (mail) (www):
There seems to be very little guidance on this issue, at least in places other than case law. (I wouldn't imagine any of the Founding Fathers having expressed a view on this, and, unlike most other Western constitutions, the US 1A does not itself list the categories of exceptions.)

All I would offer is that, if obscenity is not protected, I don't see why depictions of animal cruelty should be. They seem to be "outside the pale" in similar degrees.
12.17.2008 2:04pm
krs:
Few things are certain in the Supreme Court, but I would be my house that a SG petition where the lower court held a federal law unconstitutional will be granted.

Do you owe more than it's worth?

If not, and that really is an impressive statement, I'm really curious as to whether you have any data on what the SG's record is in getting cert granted in these sorts of cases.
12.17.2008 2:30pm
Ben P:

All I would offer is that, if obscenity is not protected, I don't see why depictions of animal cruelty should be. They seem to be "outside the pale" in similar degrees.


You might find the original thread interesting.

I'd certainly agree that certain depictions of animal cruelty are pretty repugnant (RE "Crushing" as described in Volokh's post) there are others that may still be cruelty, but that I consider different. Consider a video of a bullfight from spain or mexico, where such conduct is entirely legal and highly traditional. Or a video depicting a cock or dogfight in a country where that is legal. Someone even brought up whether PETA advertisements depicting cruelly skinned animals in Asia would fall within the ambit of the statute.


The statute apparently contained a "serious artistic literary or cultural value" clause, but assuming that at least some of these examples would qualify, I just don't see how the law can strike a balance between being unconstitutionally overbroad or unconstitutionally discriminating on the basis of content based on what a jury happens to think is "serious value." It's basically the same problem as trusting conservative juries in small towns with the decision as to whether something is "obscene" and constitutionally protected or unprotected. They'll always say it's obscene, but the constitutional right requires more respect than the decision of 13 random people.
12.17.2008 2:31pm
martinned (mail) (www):
@Ben P: While I wouldn't want to repeat the thread from July, I would like to note that the problems you describe apply in the same way to obscenity and animal cruelty.
12.17.2008 2:51pm
Hank:
The crush video law is analogous to child pornography laws, not to obscenity laws. Obscenity is an anomaly in First Amendment law in that it is the only exception the Court has created that is not based on the harm that the speech poses; the legislature may prohibit it merely because it offends the community's tastes. By contrast, the Court has upheld laws that prohibit child pornography produced with a real child because children are abused in order to produce the pornography. Likewise, crush videos should not be protected because animals are abused in order to produce the videos. The producers of both child pornography and crush videos are not merely filming crimes (which is protected by the First Amendment); they are instigating crimes in order to film them.
12.17.2008 2:53pm
Not_Convinced:
'Cept that the alleged "cruelty" is not illegal. It is not illegal to stomp on a rat. A cat, maybe, but not a rat.

Cock fighting is still legal in one US state and a host of other countries. So now, it is illegal to possess a video, of someone else engaging in an act that was legal at the time and place where it occurred? Good grief.
12.17.2008 2:59pm
Anon321:
I'm really curious as to whether you have any data on what the SG's record is in getting cert granted in these sorts of cases.

I can't offer hard data, unfortunately, but I have heard Justice Scalia say (in a discussion about how the Court decides whether to grant cert) that it's a complicated decision, except in cases where a lower court has struck down a federal statute, in which case granting cert is a no-brainer: the Court feels virtually duty-bound to grant in such cases.
12.17.2008 3:06pm
martinned (mail) (www):
@Not_Convinced: That's something that occurred to me the other day. (I admit, I was reading "The Brethren, which also spends a lot of time talking about obscenity.)

What all these different fields, like obscenity and other 1A doctrines, and abortion, the death penalty, etc., all have in common is that wherever the Supreme Court draws the line, many (state) legislatures will immediately enact exactly as much as they're allowed. As a result, the Supreme Court, not necessarily through their intention, becomes the legislature for a significant part of the country. No wonder they spend so much time talking about policy considerations. (Which is what you're doing in your 2.59 post as well.)

My point was merely from the system and logic of the first amendment. My suggestion would be that this kind of law should be allowed, but that it would be bad to enact it.

Incidentally, this is the free expression article from the ECHR. Note that it has the exceptions that are allowed already written in:


Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
12.17.2008 3:07pm
Hank:
Anti-cruelty statutes are state laws; do you know for a fact that all 50 (plus D.C.) exclude rats from their statutes? As for cockfighting, I happen to know that, on August 15, 2008, a Louisiana statute (14:102.23) took effect that made it the 50th state (plus D.C.) to outlaw cockfighting. Cockfighting is also a federal crime when the required commerce nexus is present. 7 U.S.C. 2156, 18 U.S.C. 49.
12.17.2008 3:12pm
Not_Convinced:
The US Constitution applies to this case, not some rag from the ECHR.... and yes, I am being intentionally derisive.

Eeveral EU provisions for limiting speech you quote, conflict with 1A here. For example, "public safety" and "prevention of disorder" would give legs to a heckler's veto, or allow denial of a parade permit to the skinheads or the KKK because the police can't handle the counter-protesters. Over a dozen EU countries make holocaust denial a crime. The concept that more speech is the remedy to unpopular speech has, unfortunately, not caught on in much of the rest of the world.

Whenever I hear someone's speech is an alleged infringement on someone else's "human rights" I want to puke. You do not have a right to not be offended by someone else's speech. Sterilizing immigrants from Oz might infringe on their human rights... but having a rally and proposing such a law be enacted does not. That's the difference.
12.17.2008 3:30pm
MisterBigTop:
I see this as closer to child pornography than obscenity. I think the Court will too. Of course, that doesn't mean that states can do just whatever they want in the area. In the child pornography line of cases, we see that the state can go too far when its laws are so vague as to, at least theoretically, include such classic works as Romeo and Juliet. The Court can draw such lines here, as well. If the commenter above is correct that the law contains a clause about historical and culture value , then I think it's quite possible that the Court will uphold the law, against a facial challenge. As for where the Court will draw its lines in future cases, I think something like a video of bullfights in another country might be constitutionally protected whereas a video taken by a sadist of him torturing a dog to death might not receive any protection.
12.17.2008 3:31pm
martinned (mail) (www):
@Not_Convinced: That was not my point. Any country can write whatever exceptions they want. The point was the structure of the provision, with the principle first, and then the categories of exceptions. That still means the courts have to work out the details, but at least there is a limit to anyone's freedom to invent new exceptions.
12.17.2008 3:33pm
MisterBigTop:
It seems to me that the numerous exceptions to the free speech article of the ECHR pretty much negate the rights portion.
12.17.2008 3:35pm
CVMe:
I do not owe more than my house is worth, thankfully.

I don't have a lot of hard data handy, but the SG's grant percentage is more than 50% in general (in one recent term, 7 of 9 SG petitions were granted). As Anon notes, the Court nearly always takes a case when a federal statute has been declared unconstitutional, because there is a presumptive split with every other court, which would be likely to hold the statute constitutional. Also, it leaves the law in doubt because a state court in the same jurisdiction might uphold the statute, so one person could have courts telling him two different views of his activity. Combine that with the SG as the petitioner, and I would have a pretty good bet.
12.17.2008 3:42pm
luagha:
I want to know the status of LOLcats under this statute. Clearly they constitute an unacceptable, cruel, and unusual damage to the self-esteem of the felines in question, not to mention the unnatural poses into which they are forced with unlikely and dangerous devices.
12.17.2008 3:42pm
Mike 'Ralph' Smith:
@ Hank

Child pornagraphy laws are broader than simply prohibiting the production of child pornagraphy, but also extend to the depiction of child pornagraphy. I can imagine scenarios where a video is child pornagraphy, but the acts depicted are not illegal in themselves. For example, two underage, consenting teens could video themselves. Not illegal, but selling or possessing the video of it would be.
12.17.2008 3:43pm
Hank:
Mike 'Ralph' Smith, you're right, and I would question whether the rationale for declaring child pornography unprotected by the First Amendment is present where the conduct photographed is not illegal. Those underage consenting teens could even be married to each other, by the way. Even a picture of a single teen in a lascivious pose, where he or she takes the photograph himself, constitutes child pornography.
12.17.2008 3:50pm
Not_Convinced:
@MisterBigTop: If torturing the dog was legal where and when he did it, then possession of the video should not be illegal.

@martinned:

Any country can write whatever exceptions they want.

That's precisely what we sought to prevent with a written Constitution.

The point was the structure of the provision, with the principle first, and then the categories of exceptions.

Not acceptable... you can't put the burden on the speaker to "create" new exceptions... that's by definition chilling and overbroad.
@Hank: Nice catch.. I didn't know La. had recently joined the rest of us.
12.17.2008 3:51pm
MisterBigTop:
Not_Convinced,

Would you say the same thing about child pornography? What if a country had a different age of consent for pornography?
12.17.2008 3:53pm
martinned (mail) (www):
@Not_Convinced: You misunderstand. With "any country", I meant the US, or the members of the ECHR, or Canada, or whoever. I'm not sure how having a written constitution is a guarantee against it being written in one way rather than another.
12.17.2008 3:58pm
einhverfr (mail) (www):
Martinned:

All I would offer is that, if obscenity is not protected, I don't see why depictions of animal cruelty should be. They seem to be "outside the pale" in similar degrees.


It still seems overly vague to me.

For example, suppose I video tape the following:

You see a woman's feet in high heeled shoes, stomping to death mice while standing on a large facimilie of the bill of rights.

Does that have substantial artistic and/or political value? Would it be any different if no actual mice were harmed in the process (say, I do an animated version instead)?

What about a painting covering the same material?
12.17.2008 4:02pm
Not_Convinced:

What if a country had a different age of consent for pornography?

They do. The US can prevent the importation of the materials. I note Canada has addressed the issue quite differently than the US, and IMHO, more correctly.

Child porn is the detestable underbelly of society ... but we can't allow that meme to create a license to disabuse the Constitution... no more than the "war on terror" justifies illegal wiretaps.

H. L. Mencken said "The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." Whenever the government says there is a menace, be skeptical. If I had a nickle for every hair-brained scheme and Draconian abuse of rights imposed on us "for the sake of the children" I could buy CitiGroup.
12.17.2008 4:06pm
martinned (mail) (www):
@einhverfr: I think laws against either obscene publications or publications depicting animal cruelty are a bad idea. But I also think there's no reason why either should be constitutionally protected. Or rather, depending on a jurisdiction's legal tradition, etc., they should both be protected or neither.
12.17.2008 4:07pm
einhverfr (mail) (www):
Martinned:

But I also think there's no reason why either should be constitutionally protected.


Ok, suppose I entitle the painting described above "Protected Speech." Now does it have substantial artistic and/or political value? I think an argument could be made that all of my examples would not run amok with the law (because arguably all have substantial artistic and/or value) despite the fact the depiction is derived from exactly what the law was intended to stop.

My concern is that substantial artistic value is very much an eye-of-the-beholder issue.

Furthermore, under what circumstances would photography of bullfights be banned under this law?

I would note that child pornography currently is only illegal where it involves images of real children. In 2002, SCOTUS struck down a ban on computer-generated child pornography, so I would presume that sketches and drawing (done without underage models) of minors in the course of sexual activity would be constitutionally protected speech. Such a distinction is not found in this law (i.e. "any depiction" would include cases where no animal was actually harmed).

I think that one might argue that a ban on images created in the course of violating federal laws might be Constitutional. However, once one goes beyond this specific area, I don't think such a ban could be held up given other precedents in the area.
12.17.2008 4:26pm
Not_Convinced:
The 800# gorilla in the room is that this law has to do with (whisper) s-e-x. This country has had an unreasonable obsession with anything remotely related to sex or (gasp) sexual gratification. A dildo in Georgia can't be flesh-colored... good grief. Ashcroft has a drape placed over a bare-breasted statute. Horrors! People get sexual gratification from seeing womens' feet in high heels stepping on mice. Let's ban such a deviant movies! This country's preoccupation with trying to regulate other peoples sexual habits is a disgrace. The whole body of law on "obscenity" is based on it. For God's sale, what is bad about "prurient" interests and why is something that appeals to them so awful that it strips away Constitutional protection?
12.17.2008 4:35pm
martinned (mail) (www):
@einhverfr: That's why I brought up legal tradition in my previous comment. In a jurisdiction where the constitutional limit is automatically also what the law maker will end up doing, having a strict constitutional limit that protects almost anything is the only option.

Over here, in Europe, most countries spend very little time arguing over the limits of the constitutional right to free speech (anymore). (The case law database of the ECHR, for example has only about 650 hits for art. 10, the one that I quoted earlier, compared to more than 6000 for art. 6, the right to a fair trial, and a total of 10.549 rulings that are in the database.) Generally, the constitutional guarantees allow for all sorts of things that no legislature would ever dream of doing. If they do write a law that reduces people's liberty, the argument in and out of parliament usually focuses on the merits of the proposal, instead of immediately turning the whole thing into an exercise in Con.Law.

Only when the legislator really goes to far, do citizens go to their country's constitutional court, and/or to the European Court for Human Rights.
12.17.2008 4:39pm
martinned (mail) (www):
@Not_Conviced: That I agree with wholeheartedly. But would't you prefer to settle that through the 5A/9A (4A?) right to privacy? That seems like a more sensible approach.
12.17.2008 4:44pm
einhverfr (mail) (www):
@Not_Convinced:

Unfortunately for the prosecutor, the 800LB gorrilla got lost on his way to the court room. This case was about recorded dog fights, and depictions of dog hunting with pit bulls.
12.17.2008 5:17pm
/b/:
...and the visitors to 4chan's "random" board rejoice...
12.17.2008 5:33pm
Henry679 (mail):
Should it be constitutionally permitted to ban videos depicting cruelty to humans?

If a the BTK freak had posted his handiwork to some newsgroup, should people who downloaded his sick videos be subject to prosecution if they redistribute them? Or just simply possess them? Does it matter if they have some "sexual" content--is a showing a knife in the throat permitted but a knife to the groin not? Or we just going to assume that any depiction of torture must be sexual to participant and/or viewer? (Does it matter which?)

Are the old Faces of Death videos OK so long as the "faces" are not those of animals?

A confession: I am libertarian first, and constitutionalist second. I obviously have no problem banning underlying acts such as murder, rape, non-consensual torture, animal abuse, child abuse, etc. Simply focusing a camera on such atrocities cannot make them any more acceptable, or provide any measure of legal protection. And those involved even secondarily or even further down the line in the production, marketing, etc., of such depictions can be held liable as a part of the entire enterprise. But at a certain point we leave those responsible for actually creating the depictions and meet those who simply want to see them, for whatever reason.

When we leap off into banning thought crimes, I have a problem. And that is what we are talking about--it sickens and repels us that some people enjoy depictions of these things, and we concoct ad hoc policy justifications for banning those things which give us cause for such revulsion. If we really cared about the real world consequences of certain types of expression or depictions, then certainly hateful racist speech and depictions would have to go--the Mein Kampf to The Eternal Jew to Auschwitz nexus is pretty clear, as just one example. But here in the US, those who might propose such "bans" would be roundly criticized, even if it only applied to the party actually making such speech or depictions, not to those merely those rebroadcasting them or possessing them.

I realize that in the case at bar, the sale of videos was involved. But if we are going to utilized the "child pornography exception", I fail to see why commerce will be required ultimately. "Free" child porno is just as prohibited as that commercially generated; it is contraband, pure and simple. Why would it be any different here?

If we are going to have a "child pornography exception", then let it be strictly that. I despise animal cruelty (we have several cats, a species which many of these mental defectives seem to single out for abuse). But aside from those actually involved in abusing, or procuring the abuse of, animals, we should let it rest.
12.17.2008 6:24pm
Stormy Dragon (mail) (www):
Does the law ban all depictions of animal creulty or merely records of actual animal creulity?

For example, the Road Runner cartoons certainly qualify as a depiction of animal creulty. Are they technically illegal right now?
12.17.2008 6:33pm
einhverfr (mail) (www):
Stormy Dragon:

For example, the Road Runner cartoons certainly qualify as a depiction of animal creulty. Are they technically illegal right now?


Especially since the Road Runner cartoons may have artistic value but it certainly isn't serious artistic value!
12.17.2008 7:09pm
NickM (mail) (www):
Not_Convinced - Ashcroft covered the statue because pictures of prior Attorneys General in front of it made them look silly (especially the Meese Commission Report on Pornography, with a marble bare breast visible in the picture next to Meese's head).

Nick
12.17.2008 8:17pm
einhverfr (mail) (www):
Martinned quoting the ECHR:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.


Are all opinions entitled to equal protection? What about "The holocaust was overblown/didn't happen/etc?"

What about "The holocaust was a good thing?"

Why is this different from the Jylands-Posten cartoons?
12.17.2008 8:20pm
einhverfr (mail) (www):
(One of the interesting things about the US is that we have much stronger free speech protection than in Europe. I don't think the ECHR would necessarily consider "Kill the niggers... We intend to do our part.... Send the Jews back to Israel.... Send them back to the dark garden" to be protected speech, but at least one case clearly establishes that this is protected speech here.)
12.17.2008 8:34pm
whit:

For example, two underage, consenting teens could video themselves. Not illegal


yes it is illegal. i had a case very similar to this. the prosecutor agreed that it would not be in the interest of justice to prosecute it, but TECHNICALLY it is child pornography under our state law...
**
RCW 9.68A.070
Possession of depictions of minor engaged in sexually explicit conduct.

A person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class B felony
***

there is nothing there about whether the teens "consented" to the filming, or even did it themselves. the mere act of possessing child porn is illegal.
12.17.2008 8:42pm
whit:
killing an animal, even a pet is not "animal cruelty" (not under my state's statutes) as long as it is not done in a means that causes "undue suffering".

would that mean then that depictions of same would not be prosecutable?

it is entirely legal to kill any animal (you own) for any reason/whim you might have.

the only issue with animal cruelty is the means by which you carry it out. gruesomeness is wholly irrelevant, as long as it is not done in a manner that causes undue suffering, the fact that it is gruesome is not an issue
12.17.2008 8:46pm
Henry (mail):
For example, two underage, consenting teens could video themselves. Not illegal

yes it is illegal. i had a case very similar to this. the prosecutor agreed that it would not be in the interest of justice to prosecute it, but TECHNICALLY it is child pornography under our state law...


I think that the point being made was that the sex would not be illegal but that the pornography that resulted from photographing it would be. This is so even though the rationale for excluding child pornography from First Amendment protection is that it is necessary to deter the underlying illegal conduct (i.e., child abuse).

There may be a good reason to deter consenting teens from photographing themselves engaging in legal sex acts, namely that the pictures could come back to haunt them. But the Court has not held that that reason justifies an exception to the First Amendment.
12.17.2008 9:13pm
einhverfr (mail) (www):
It would seem to me that teens filming (not for distribution) themselves in legal sex acts would be a great place for an as-applied challenge to the constitutionality of the law.

The law might be broadly constitutional, but some applications might be subject to challenge. IANAL though.
12.17.2008 9:17pm
whit:
right. i'm not arguing it's a good challenge to the law. i am saying that it meets the definition of possession of child porn. maybe there is a case that says it's not a violation, but i'm not aware of any.

regardless, the prosecutor and i agreed nobody should be prosecuted.

the whole thing came about when mom found the picture on her kid's computer... in the trash bin lol.
12.17.2008 11:16pm
einhverfr (mail) (www):
Whit wrote:

the whole thing came about when mom found the picture on her kid's computer... in the trash bin lol.


So technically, since the mom probably legally owned all the kid's possessions....

BTW, I think the decision not to prosecute was a good one. There is no point in prosecuting constitutionally questionable cases, especially when the harms regulated by the law don't directly apply.

BTW, I have seen cases where people were breaking into computers and using them as drop points for kiddie porn too. I have gotten some flak from other consultants for my decision to refer the matter to the police because although I can know that it was coming from an external site, there is some fear of innocent parties (the victims of the unauthorized access) being prosecuted. My general feeling is that most of the better police departments seem to do an OK job but there are some departments which don't have the necessary expertise or motivation.
12.18.2008 1:12am
David Schwartz (mail):
The problem with not prosecuting constitutionally questionable cases is that it's what leads to fiascos like the Lori Drew case. Because there are no prosecutions, everyone assumes the underlying conduct is legal. Then when a "bad person" does the same thing everyone else does, they go to jail for the wrong reason.
12.18.2008 6:37am
martinned (mail) (www):

(One of the interesting things about the US is that we have much stronger free speech protection than in Europe. I don't think the ECHR would necessarily consider "Kill the niggers... We intend to do our part.... Send the Jews back to Israel.... Send them back to the dark garden" to be protected speech, but at least one case clearly establishes that this is protected speech here.)

There are two ECHR cases I could find that concern art. 10 and the n-word. In Jersild v Denmark, the court found that the plaintiff's free speech rights were infringed, when a journalist was prosecuted for making a TV interview with some serious racists. They were prosecuted, but so was he. He was charged with aiding and abetting, and that was ruled to violate his freedom of speech.

The second one is A v UK, but that doesn't concern the speaker's free speech rights, but rather her right to sue a Member of Parliament for defamation after the MP described her in parliament as "the neighbour from hell", as part of a general debate about "anti-social behaviour".

The particular phrase quoted above would likely be taken as a sufficiently serious threat to be prosecuted as such, but in many countries it might also suffice for a hate speech prosecution, and I don't think such a prosecution would be in violation of art. ECHR.
12.18.2008 9:42am
WilliamWilliam:
@martinned

They were prosecuted,

Such a prosecution would be blatantly unconstitutional in the US.
12.18.2008 10:23am
martinned (mail) (www):
@WilliamWilliam: And yet showing your nipple does get you in trouble with the FCC. What's your point? Different country, different values, different constitution.

To be clear: my previous comment just looked into einhverfr's hypothetical and concluded they were probably right, at least on that specific example. Whether that is a bad thing is a different matter, and quite outside the scope of this thread.
12.18.2008 11:08am
onafixedincome (mail):
Today, it's dogfighting videos. We can all agree that those are bad, right?

And killing animals inhumanely, that's bad too, right? So that would be a cruel thing to depict, yes?

And then there's keeping animals in cages or pens! Heavens! That's just awful, gosh, gotta admit that!

And OMG, you have PICTURES of your dog, which was starving when you got it--and starving animals is cruel, we all agree there, yes? So we'll add that charge on too....

And, gods forbid you take a picture of an odd injury to an animal!

As with so many things, cruelty is in the eye of the beholder and interpreter. To blithely allow this sort of unconstitutional BS to work its way into law is reprehensible.

Animal rights was the source of the law; consider that the end goal of AR is to END ALL ANIMAL USE, CRUEL OR NOT. They trumpet their successes as wedges into larger steps toward this goal, folks...and the animals will thereby suffer.

In my position as an animal owner and user, I think that this statute should never have been accepted in the first place, for all the reasons cited in this thread. How do we improve? We must learn, and to do that, we must share information. By banning 'depictions of animal cruelty', we restrict the free flow of information between those who wish to learn.

Dogfight videos? Nasty things, no question. But...unprotected under the Constitution, no. To some, a video of, oh, wrestling or boxing is just as horrid, and that's protected...
12.18.2008 12:51pm
whit:

Such a prosecution would be blatantly unconstitutional in the US.



the point has been made in thread after thread. we have far far far more free speech than europe, canada, etc. it's not even close.

this is nothing new.


Dogfight videos? Nasty things, no question. But...unprotected under the Constitution, no. To some, a video of, oh, wrestling or boxing is just as horrid, and that's protected...




fwiw, john mccain (in all his statist glory) referred to MMA as human dogfighting and was blathering about banning it.

fwiw, i find your slippery slope argument non-compelling. there is a difference between cruelty and lawful killing

i can (right now if i want) take my pet into my backyard and shoot it in the head for no reason. that's legal. assuming the neighboring house isn't too close for my county's reg's regarding open shooting, that is.

but i can't torture it, or shoot it in the leg and watch it bleed out.

i agree with you that animals don't have rights . but animal cruelty laws are not any implicit recognition of same.
12.18.2008 1:05pm
whit:

The problem with not prosecuting constitutionally questionable cases is that it's what leads to fiascos like the Lori Drew case. Because there are no prosecutions, everyone assumes the underlying conduct is legal. Then when a "bad person" does the same thing everyone else does, they go to jail for the wrong reason.



except that's not the case here. few people assume that videotaping underage sex whether done by participants or not is legal.

the kids were goofing around and were idiots. welcome to being a teenager, but prosecuting them would have been even stupider and the prosecutor made the right decision (and my recommendation was the same - no prosecution).

it is a little ironic that it's perfectly legal for a 40 yr old to schtup a 16 yr old (in my state), but not to take video of it.
12.18.2008 1:08pm
martinned (mail) (www):
@onafixedincome: Slippery Slope? Really? That's what you're going with? Why not do it right and explain how this law being upheld would lead to the end of civilization as we know it? Don't get me wrong, I think it's a stupid law, and quite likely unconstitutional, but let's not make too big a deal out of it.
12.18.2008 1:08pm
einhverfr (mail) (www):
@martinned:

Actually the comments I referred to in the latter part ("Kill the niggers....") were only hypothetical as far as occurring in Europe. I took them out of the footnote 1 of the majority opinion in Brandenburg v. Ohio (which held that prosecuting the person who made them for such speech at a KKK rally was not allowed by the First Amendment).

One key element I did not see a reply to was how these hypotheticals ("The holocaust was a good thing") would be different from the Jylands-Posten cartoons. I think that there are legitimate reasons to see European free speech rights as being limited by viewpoint discrimination and thus not providing equal protections to all. This is actually relevant to the disagreement over this topic with Martinned, as I will show.

The court in that case ruled that the speech did not constitute a true threat because unless it was intended and likely to cause imminent lawless action.

The fundamental difference is that the Article 10 wording provides free speech protections which are approximately as strong as the right to bear arms provision in the English Bill of Rights is. While abstract ideas "the holocaust was a good thing" for example would be protected here, they are not protected in Europe.

Similarly, the ECHR does not see a cartoon expressing sympathy with the 9/11 hijackers as protected speech.

I am not even sure whether saying "David Irving is a great Free Speech activist and we should all be grateful for the issues he is raising"* without further context would be entirely protected by the ECHR.

* The fact is that Irving's point about historians being untrustworthy when the law tells them what they have to right is quite valid IMO. This doesn't in any way address the questions of the holocaust. However it DOES glorify a crime (holocaust denial) and such glorification has been routinely seen as outside free speech protections in Europe.

Nor am I sure that laws banning depictions of Robin Hood, were they enacted today, would be seen as inconsistent with the European agreements on human rights.

My own research into the development of 1A case law suggests that the major reason for the extremely strong protections is that these were necessary because of political persecutions in the name of fighting communism. In fact the primary seminal cases in this area involve the question of whether teaching the moral obligation to overthrow the government by violent force at some point in the indefinite future is sufficient reason to make the communist party a criminal syndicate. These standards were then applied to domestic terrorist groups like the KKK.

I agree with your point about the silliness of the FCC rules and perhaps sooner or later, we will discover that our response to such things is a key element of the damage that such speech causes.

However, let's tie this back to the topic at hand. Suppose I draw a cartoon depicting a crush video scene with say, cute kittens being killed over a copy of the Bill of Rights. It would seem a no-brainer to me that this would have sufficient political and artistic value to be outside the scope of the law in question and under strong protections of the first amendment, but I might not want to rely on judges and juries seeing things my way. Such a cartoon would probably not be seen as protected speech in Europe in the same way that cartoons praising or expressing sympathy with those who committed the 9/11 attacks were not exercising their European free speech rights.

Now, let's look at my cartoon. What am I expressing? Am I expressing an idea that this is damaging to the bill of rights? That such is protected speech? That the bill of rights protects offensive ideas? Unfortunately the meaning we project into it is probably as much a function of how we think about the matter as it is what I am trying to communicate.

Am I glorifying the torture of animals in the making of crush videos? Probably in some way. How exactly remains an open question and depends on what you think I am trying to say.
12.18.2008 1:11pm
einhverfr (mail) (www):
Whit:

the kids were goofing around and were idiots. welcome to being a teenager, but prosecuting them would have been even stupider and the prosecutor made the right decision (and my recommendation was the same - no prosecution).


I would actually suggest that there is a different reason to oppose unconstitutional enforcement of otherwise constitutional laws.

The Supreme Court has generally seemed to imply that current child pornography bans really are at the edge of what is permissible under the first amendment. For example, they have been unwilling to extend those bans to cases where no children are actually used in the production of child pornography (computer-generated graphics representing child pornography are constitutionally protected). It would seem to me that teens taking pictures of eachother, where no distribution is involved, might very well be seen as protected speech. It isn't in the interest of justice to prosecute because the act does not cause the harm that the law was intended to prevent, as well.

Mr Schwartz seems to be saying that one should always prosecute in the hope of obtaining guidance from the courts. However in a case where an as-applied challenge is a likely result, I don't see a reason why this is compelling. This is not like Lori Drew at all, except that Ms Drew IMO should not have been prosecuted in this case either.

The question is really how aggressively do we want to use our courts to interpret laws? Do we really want to use a lot of tax payer money to bring every possible violation before a court in order to get as much guidance as possible? Or should the courts largely be available to offer guidance based on real and, in the minds of the public officers, reasonable applications of the laws?
12.18.2008 2:07pm
martinned (mail) (www):
@einhverfr: The point that I originally raised was that it might be better to reserve constitutional review for very seriously infringing laws. That way, a society can have a normal conversation about whether a certain law is stupid or otherwise undesireable without turning the whole thing into moot court.

The classic example of how dragging the constitution in too easily can cause problems is, of course, Roe v Wade. Quite aside from my opinion about the legal approach of the majority in that case, I would say that some judicial restraint in that case would have been better. That way, it would have been possible to have a normal, democratic conversation about abortion, without ending up talking about the founding fathers, substantive due process and what not.

The same goes for gay marriage. All countries outside the US that have gay marriage enacted it through the legislature. That occasionned a healthy debate about the values we hold dear, etc., followed by a vote. Only in the US has this question been turned into a constitutional one, and I highly doubt that that is an improvement.

(FYI, the ECHR article on marriage is expressly qualified by "according to the national laws governing the exercise of this right", meaning that it could never be interpreted as requiring gay marriage, while abortion is still illegal in Ireland and Poland without any complaint from Strasbourg.)

Back to free speech: I'd like to start by saying that I'm not aware of the details of the Danish cartoon case. To my knowledge, there has been no ECHR ruling on it, and my Danish is a bit rusty. ;-)

AFAIK, the issue in that case wasn't really that anyone was trying to ban anything, except of course the "offended" muslims, but rather that the publishers of Jyllands-Posten and the cartoonists felt that the government should have stood up for its rights more enthusiastically. I am not aware of any real litigation in this case, and I would imagine that the Danish government, in choosing its course of action, should be fairly free to balance competing interests as they perceive them.

When it comes to Holocaust denial, there are two things worth noting. First of all, because the European Court of Human Rights has jurisdiction over 47 countries, it has always tried to avoid ending up in the middle of some kind of culture war. So its case law on many different articles applies significant deferrence to the legal traditions, etc. of the signatory states. Obviously, the Holocaust is a touchy subject in Germany, meaning that even I think their legislation is probably justified. (I do have a problem with such legislation in other countries.)

Secondly, you're again overlooking the distinction between what would be theoretically OK under the Convention and what actually happens. To my knowledge, only a few European countries have Holocaust-related speech restrictions on the books, and the only country that sometimes uses them is France. In Germany, even in the absence of any law, the enduring taboo on Holocaust denial would be enough to keep people quiet, and in most other countries, even if the laws are on the books, one would have to make quite a bit of noise before some government minister goes on record saying it's a disgrace, referring to the law.

I don't think David Irving's case(s) are really an exception to that, since his prison sentence was imposed in Austria, a country with a history troubled similar to Germany's. And even in that case, according to wikipedia, he was arrested in 2005 based on a 16 year old arrest warrant. In those 16 years, he had travelled all over Europe, spoken at all sourts of unpleasant gatherings, even in Germany. Other cases that are mentioned on the wiki page include a libel suit in Atlanta, which seems constitutionally unproblematic, a Canadian case that I can't comment on because it's a legal system I'm pretty much unfamiliar with, and finally all sorts of countries deciding that they don't want him to come and visit anymore, which also seems constitutionally OK under any constitution I know of. All of this shows that, when you come down to it, very few people are interested in prosecuting even the king of all Holocaust deniers.

I'm going to stop now. To reiterate: what is "protected" or not is not a question that is at the forefront of anyone's mind when they discuss a proposed piece of legislation, or the enforcement of an existing law. It is something that is argued in court, where it often wins. (Recently I was debating a case before a low Dutch court, where someone was trying to use libel law to stop speech, Sullivan style. In that context, art. 10 ECHR might come up.) Generally, these Mohammed cartoons and all sorts of other questions concerning islam-related speech are a hot topic all over Europe, but very few people see the need to make this a constitutional question.
12.18.2008 2:10pm
whit:

The Supreme Court has generally seemed to imply that current child pornography bans really are at the edge of what is permissible under the first amendment. For example, they have been unwilling to extend those bans to cases where no children are actually used in the production of child pornography (computer-generated graphics representing child pornography are constitutionally protected). It would seem to me that teens taking pictures of eachother, where no distribution is involved, might very well be seen as protected speech. It isn't in the interest of justice to prosecute because the act does not cause the harm that the law was intended to prevent, as well.




there are plenty of examples of teens having sex that are "no harm" examples. and of course the age of consent varies. one state i worked in was 14, for instance.

but we set the age at legal depictions of same at 18.

iow, you can consent to sex at 14 (in one state i worked in) but can't consent to having pictures taken until you are 18.

"harm" issues aside, there is plenty of arbitrariness, as it has to be in issues like this.

there is nothing magical that happens the day you turn 18, but thats the date you can magically film, distribute (for money if you want), etc.

iow, any argument about "harm" has to also concede it's really about drawing arbitrary lines. like it or not
12.18.2008 2:19pm
einhverfr (mail) (www):
whit:

What is different about child pornography is that the Supreme Court's upholding of the laws have been based on a harm standard. The question is whether prosecution or private, not for circulation pictures taken in such a matter would be sufficiently protected as to warrant reducing the scope of the law in court. In essence, none of the defences of the law that apply to the law in general apply here, so the speech is far more likely to be protected than other images.

This wouldn't mean striking down the law, but rather the court stating that it couldn't be enforced in these cases. People would generally assume that such conduct would be illegal until someone would try to enforce it, and then that application of the law would be struck down (but not the law itself).
12.18.2008 2:44pm
whit:
i agree with that analysis, ein.

my point is that regardless of the alleged harm standard, the reality is still that the lines drawn are entirely arbitrary.

there is no magical difference between a 17 and 18 yr old such that the former is harmed, and the latter isn't
12.18.2008 3:22pm
einhverfr (mail) (www):
Martinned:

The point that I originally raised was that it might be better to reserve constitutional review for very seriously infringing laws. That way, a society can have a normal conversation about whether a certain law is stupid or otherwise undesireable without turning the whole thing into moot court.


There is a fundamental issue though where that law involves viewpoint discrimination. In these cases, I am not sure society can have an appropriate discussion. For example, "condoning terrorism" can become a crime, because it supports the legitimate goals of public safety and fighting terrorism. This isn't very far from where we were half a century ago in allowing prosecution of people for the sole purpose that they were members of the Communist Party (and therefore taught the eventual necessity to overthrow the government by violent means if necessary).

You can't have a fair discussion about the decision of the merits of viewpoint discrimination law unless people are entirely free to support the banned viewpoint. Furthermore if the glorification of crimes is not protected speech, then any discussion about whether to make glorification of crimes protected speech is fundamentally truncated. Once again, we saw this in the US during the McCarthy Era.

In short the ECHR holds that bad tendencies in speech are subject to regulation in roughly the same fashion supported in English common law. This offers no more protections to speech than the English Bill of Rights offers regarding the right to bear arms.


Back to free speech: I'd like to start by saying that I'm not aware of the details of the Danish cartoon case. To my knowledge, there has been no ECHR ruling on it, and my Danish is a bit rusty. ;-)


The issue in the Danish Cartoon case was the unwillingness to prosecute what was (I think) rightly seen as hate speech under Danish law. If the same sorts of cartoons were made about more popular groups, I think they would have been prosecuted. Hence the idea that hate speech laws are inherently discriminatory and that this is generally applied against Muslims and in favor of other groups.

Once again: Cartoon with Muhammed wearing a turban which is shaped like a bomb is ok (and not prosecuted at all). Cartoon of planes crashing into the WTC with the capture "we all have dreamt it, Hamas did it" is not ok (even aside from libel laws), is prosecuted under French laws, and the artist fined. I think Muslims do have a right to feel that this law is unfair.

Secondly, libel is a very different matter since it is a civil law rather than a criminal one, and since it involves a question of factual information rather than a question of abstract political ideas. "The Jews are a very wicked people" can never really be libel in this country, to my knowledge, and the same would hold true of "Every Jew is very evil."*

* Disclosure: My family is 1/4 Jewish. Statements against the Jews as abstract statements are merely intended to show the difference between various categories of expression in the law. Also I don't think "neighbor from hell" is a slanderous or libelous claim in this country absent more information.

Back to my main point: a bad tendencies test as seems common in Europe (and was briefly held here in the US) would certainly allow holocaust denial and the cartoon depicting a crush video scene on top of the Bill of Rights to be subject to bans and legal sanctions. Here in the US both would be fully protected speech.*

* One interesting point as a history buff. One of the very interesting points in the run up to WWI was the argument between Serbia and Germany over the question of freedom of expression in relation to Archduke Ferdinand's assassination. Germany and Austria, among other demands, were demanding government censorship on the basis that no civilized country allows such free rein to the press. Evidently the US was not in their eyes a civilized country :-)
12.18.2008 6:44pm
einhverfr (mail) (www):
Just a note on Yates v. US (cited above): That case (linked to in my post) ended the practice of prosecuting people for communist party membership in the absence of evidence of actual lawless action or preparation for such action.
12.18.2008 7:22pm

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