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Cockfighting, the First Amendment, and Internet Jurisdiction:

So here's more "crazy Internet jurisdiction stuff" - with a nice First Amendment overlay, to boot. Federal law (who knew?) makes it a crime to sell depictions of animal cruelty:

18 USC § 48. Depiction of animal cruelty

(a) Creation, sale, or possession. Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both. . . . (c) Definitions. In this section-- (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 . . .

A website based in Puerto Rico, www.toughsportslive.com, is challenging the law on First Amendment grounds. Our own Eugene Volokh is quoted in the NY Times story as holding the opinion that the statute is probably unconstitutional — and I agree. The statute makes it illegal to depict conduct if the conduct is illegal in the State in which the depiction is created, sold, or possessed — even if the conduct being depicted took place somewhere (like Puerto Rico) where it is legal. Speech that concerns conduct that is illegal in Virginia or Rhode Island cannot be banned consistent with the First Amendment - can it?

And beyond the First Amendment question — what if the website server, and all of the conduct depicted, came from a country (let's say Thailand) in which the conduct depicted (cock-fighting) is legal? Could a US court entertain an action against the website operator? [Alert readers will notice that this is the mirror image of the action recently filed in an Italian court against Google executives, discussed here].

Putting aside the question of whether a US judgment can be enforced against the foreign website, would the Thai website be violating 18 USC 46? By its terms, it looks like the answer is 'yes' — if cock-fighting is illegal under, say, Virginia law, and if the depictions are 'possessed' in Virginia, the statute appears to criminalize the creation/possession/sale of the image.

But I'd argue that the statute does not apply at all. The conduct in question, and which is depicted in the image, is not "cock-fighting," it's "cock-fighting in Thailand." And cock-fighting in Thailand is not illegal under federal law (because federal law does not apply to any conduct in Thailand), nor is it illegal under the law of any State (same).

And if you've read this far and find these issues of interest, hopefully you won't be too annoyed if I say, again: you should really read my book. The implications for the future of the Net in cases like this are profound, and we need to figure out how to deal with them in a sensible way. DavidP

Related Posts (on one page):

  1. Cockfighting, the First Amendment, and Internet Jurisdiction:
  2. More Crazy Internet Jurisdictional Stuff:
Wade Nesbitt:

And cock-fighting in Thailand is not illegal under federal law (because federal law does not apply to any conduct in Thailand), nor is it illegal under the law of any State (same).


Isn't it unlawful for a US citizen to engage in sexual relations with a person under 18 years of age in, say, Thailand?
2.13.2009 10:45am
sdfsdf (mail):
What if people in Thailand use a blog based in Thailand to carefully plan to murder the governor of Virginia? In particular, they announce that the assassins will meet in "our secret meeting spot" in Virginia at midnight Feb. 24 to get their weapons.

No crime has yet been committed in America.
2.13.2009 10:55am
PersonFromPorlock:

The conduct in question, and which is depicted in the image, is not "cock-fighting," it's "cock-fighting in Thailand."

That reasoning may be a little more sophisticated that reality will allow. What about a Thai cock-fight where no people are seen, only the cocks, and there is no way to tell where it was made? Is that still a depiction of "cock-fighting in Thailand?"

I wonder how many images of bull fights there are on the web? Unless they're all prosecuted, I can't see this law getting past the Equal Protection Clause.
2.13.2009 10:58am
Seamus (mail):
I guess anyone who sells an old copy of "Or I'll Dress You in Mourning," by Collins and Lapierre, had better pull out all the photographs that actually show El Cordobéz fighting bulls. What's more, I guess that when National Geographic sells DVDs of all their backissues, they'll have to censor the bullfighting pictures or risk hard time at Club Fed.
2.13.2009 11:03am
Joseph Slater (mail):
PersonFromPorlock:

As to the Equal Protection claim and bullfighting, these folks may not be "legal scholars," but they strongly advocate that different standards be used for bovines as opposed to chickens.
2.13.2009 11:04am
Ed S (mail):
>federal law does not apply to any conduct in Thailand

The PROTECT Act of 2003 is a federal law that applies to conduct in Thailand.
2.13.2009 11:10am
My Middle Name Is Ralph:
Doesn't the reasoning of this post suggest that depictions of child pornography should not be illegal provided that the actions took place in a jurisdiction where the conduct was legal? What's the distinction?
2.13.2009 11:23am
Tennessean (mail):
X Ralph X,

My guess (an uneducated one) at the distinction: child pornography does not depend on a predicate illegality, unlike this statute: "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".
2.13.2009 11:38am
ShelbyC:
Well, prn with someone under 18 is illegal regardless of whether the underlying activity is legal or not, right? Why is this any different?
2.13.2009 11:44am
Tennessean (mail):
Because a depiction of animal cruelty is not illegal if the conduct depicted is legal. The conduct depicted must be illegal in at least some jurisdiction. By contrast, child porn laws would (I believe) cover depictions of some legal conduct (e.g., pictures taken by a younger-than-18 husband and wife).
2.13.2009 11:50am
Douglas2 (mail):
I was hoping to buy an audiobook of "Black Beauty: The Autobiography of a Horse" by Anna Sewell, but I guess it's illegal.
2.13.2009 12:11pm
My Middle Name Is Ralph:
Tennessean, are you suggesting that a broader version of the animal cruelty depiction law would then be OK? Thus, jurisdiction A could ban depictions of animal cruelty that took place in jurisdiction B (where the acts and depiction of same are legal) provided the acts are legal in juridiction A. But, if the acts are illegal in jurisdiction A, then it's not OK. The fact that the underlying acts in child pornography are sometimes legal makes the reach of child pornography laws much broader than the animal cruelty depiction act at issue here.
2.13.2009 12:19pm
PubliusFL:
But I'd argue that the statute does not apply at all. The conduct in question, and which is depicted in the image, is not "cock-fighting," it's "cock-fighting in Thailand."

How do you get around the statutory language that says "depiction of animal cruelty" is defined "regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State." It seems pretty clear that statutory intent is to focus on the substance of the conduct and to ignore the location.
2.13.2009 12:36pm
CheckEnclosed (mail):
Is there any explicit carve out for journalistic "depictions" of animal cruelty, or can a "60 Minutes" style expose of dog-fighting fall under this statute if it has pictures or audio of a dog fight?
2.13.2009 12:41pm
M65:
USA v. Stevens

A federal appellate court struck down the statute as unconstitutional.
2.13.2009 12:42pm
Soronel Haetir (mail):
I thought one circut had already addressed this law and this I thought this particular law had already come up on the VC a couple times with the prosecution coming out the loser in the discussed cases.
2.13.2009 12:43pm
CheckEnclosed (mail):
And another thing: if living humans are included in "living animals" ... ?
2.13.2009 12:45pm
Wiggum:
My Middle Name is Ralph


It is my understanding that Child Pornography isnt protected under the First Amendment and would fall outside this exception.

The only rights animals have are the ones we give them. Well, maybe they have the right to be part of the food chain, and I think we can all agree they should be able to enjoy the right of being delicious.

p.s. David Post

Interested in your book, hate hard back books.

Sincerely,

Limp Wrist
2.13.2009 12:48pm
Joe Hiegel:
DP, you have out a book about cyberspace policy? Why didn't you mention it sooner?

(In fact, though, your frequent references to the book have worked; I ordered it yesterday. I mean only that VC subtlety has its virtues; Orin's never been explicit, but I surely know that I owe him a beer.)
2.13.2009 1:53pm
Sk (mail):
Once again applying logic where it doesn't belong.

There are exceptions to the first amendment. Those exceptions depend upon societal mores. As societal mores change, those exceptions change. Currently, child pornography is an exception. Cruelty to animals may or may not be an additional exception (the new york legislature appears to think so, the judiciary does not). Give it time-if the more changes, and the emotional response to animal cruelty among the judiciary changes, the law will change.

Sk
2.13.2009 2:01pm
Fub:
(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, ...
"So, what are you in here for?"

"It started with a bad concert review. But I released the recording anyhow. Next thing I know the DOJ turned up a lady in the audience who had smuggled her chihuahua into the venue in her purse. Things went downhill from there."
2.13.2009 3:09pm
Kazinski:
Netflix needs to cleans its on demand library of any depictions of bullfighting.
2.13.2009 3:26pm
My Middle Name Is Ralph:
wiggum,

I get that depiction of child pornography isn't protected under the first amendment. But, that hardly answers why depiction of animal cruelty is not similarly protected. The glib response about animals not having rights is a non sequitur since the first amendment issue relates to the rights of the people who create, sell or possess depictions of animal cruelty, not the animals being depicted.

"[b]eyond the First Amendment question," Professor Post raises a jurisdictional issue about the extent to which US law can apply to actions beyond its borders. Putting aside the first amendment issue, to the extent that the US courts can not entertain actions against foreign web operators who depict cruelty to animals because the conduct occurs abroad and is legal in that jurisdiction, wouldn't the same rationale apply to depictions of child pornagraphy that occur abroad and are legal in that jurisdiction? If not, why not?
2.13.2009 3:29pm
CM (mail):
So what about horse slaughter? Since it is illegal to slaughter horses, would depictions of horse meat or books on the proper way to slaughter horses be illegal as well?
2.13.2009 3:45pm
whit:

Since it is illegal to slaughter horses


where is it illegal to slaughter horses?

maybe in some places.

in my state, it is legal to slaughter (kill) ANY pet or livestock.

as long as one does not do it in a cruel manner.

you can take your horse, chicken, cat, dog, etc. into the backyard and shoot it in the head, for instance (as long as you are in a jurisdiction that is "open shoot"). in an area that wasn't open shoot (many cities are not open shoot, and some county areas that are more built up), you could use any other means that wasn't cruel, iow did not cause unecessary pain.

or you could transport it to a rural area and dispatch it there.
2.13.2009 4:25pm
Duffy Pratt (mail):
Netflix will also have to pull The Jerk, with its notorious cat juggling scene.

On its face, this law would preclude someone making a documentary about animal abuse for the purpose of raising awareness to increase enforcement efforts. It would also, probably, forbid someone making an expose of the practices at the Houston dog pound. At least as applied to those sorts of situations, it's pretty obviously unconstitutional.

As for the extra-territorial jurisdiction arguments, that's a matter of Congressional intent. And that intent would be read in a way that would preserve the constitutionality of the bill, if possible.
2.13.2009 4:54pm
pete (mail) (www):

where is it illegal to slaughter horses?

maybe in some places.


In California it is illegal to slaughter horses for human consumption thanks to proposition 6 a few years back (I voted against it when I lived in California).

It is legal to kill horses there, but to not kill and butcher them to feed people. I think that is the law in several other states.
2.13.2009 4:59pm
Bill Dyer (mail) (www):
U.S. ex rel. Bambi's Mom's Executrix v. Estate of Walt Disney and The Walt Disney Company: forfeiture action for net profits received since 1942 from visual depiction of casual, intentional, brutal, and cruel slaying of relator's decedent.

I'm on board -- the only question is, 33% or 40% contingent fee?
2.13.2009 5:07pm
Rusy:
Aren't secondary effects the only reason that child pornography "falls outside" of the First Amendment? That is, that the making of child pornography necessarily involves the abuse of a child. Isn't that why the Court struck down a law which also banned virtually-created child pornography (believe it was struck down as overbroad)? I guess the same logic could apply to animal cruelty if you want to put child abuse and animal cruelty on the same level.
2.13.2009 5:34pm
John A (mail):
It would seem that paintings, not being photographs, might be OK - so I guess those 19th Century or earlier depictions of bear-baiting, dog fighting/ratting etc. are safe. But are photographs of the paintings/mosaics of Minoan bull dancers, should someone claim them to be representing maltreatment?

And yes, I do not quite see how a federal law should enforce laws of one State in another State which does not have that law, even while I can see such applications (usually taxes/fees) all around me.

And law, by its nature, will usually lag technology: those applying to a farm's windmill-powered water pump in Kentucky are not satisfactory for electricity-generating windmill farms in Montana. And possessiveness (not necessarily greed as such) will want faster answers than are available. Such as this week's action by audio publishers against the second-generation "Kindle®" electronic book, claiming that its ability to "speak" the text is a "performance" not covered by sale of the text itself.
2.13.2009 7:39pm
jinglefritz:
Does this mean we finally have a reason to start arresting PETA members? I've seen some pretty arresting material which they claim depicts the "torture" of animals. Isn't being a member and donating to their cause conspiracy to distribute that material?
2.13.2009 8:18pm
whit:

Does this mean we finally have a reason to start arresting PETA members? I've seen some pretty arresting material which they claim depicts the "torture" of animals. Isn't being a member and donating to their cause conspiracy to distribute that material?


I enthusiastically volunteer to arrest the nekkid "no fur" and vegetable abusing PETA models!
2.13.2009 8:44pm
TruePath (mail) (www):
Ohh c'mon David, that's a nice intellectual game to play but obviously isn't a good faith interpretation of the statute. It's a basic principle of statutory interpratation that you don't interpret parts of the statute in ways that make it superfluous.

If one took your argument seriously this clause in the statute would be totally ineffective. You would have to think the legislature added the caveat that this applies regardless of whether the activity was legal where performed with the intent to merely complicate the statute since it doesn't actually do any work.

Of course the obvious plain meaning of the statute avoids this completely. This law makes it illegal to display images of animal cruelty if a similar act, disregarding the jurisdiction in which it was performed, would have been illegal if performed in this jurisdiction.

----

Sk:

It's descriptively true that as a matter of actual fact certain types of content recieve less first ammendment protection because they are viewed as in such conflict with our social mores we can't bring ourselves to allow them.

However, as a matter of legal procedure and scholarship this is irrelevant. The only reason to have the bill of rights in the first place is to protect these rights even when social mores would dictate otherwise.

In other words so long as people try to apply logic to the first ammendment only those behaviors that are so abhorent that the supreme court can't bring themselves to protect despite the logic will be restricted.
2.15.2009 1:41am

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