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):
- Cockfighting, the First Amendment, and Internet Jurisdiction:
- More Crazy Internet Jurisdictional Stuff:
Isn't it unlawful for a US citizen to engage in sexual relations with a person under 18 years of age in, say, Thailand?
No crime has yet been committed in America.
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.
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.
The PROTECT Act of 2003 is a federal law that applies to conduct in Thailand.
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".
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.
A federal appellate court struck down the statute as unconstitutional.
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
(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.)
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
"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."
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?
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.
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.
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.
I'm on board -- the only question is, 33% or 40% contingent fee?
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.
I enthusiastically volunteer to arrest the nekkid "no fur" and vegetable abusing PETA models!
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.
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