Julie Hilden

Does the Federal Anti-Animal-Cruelty-Depiction Statute Violate the First Amendment? Part Two

By JULIE HILDEN


Tuesday, October 27, 2009

Does the federal criminal statute targeting depictions of illegal animal cruelty violate the First Amendment?

Earlier this month, the Supreme Court heard oral argument in a case that raises this very question. In this column – the second in a two-part series -- I'll continue my analysis of that case.

Is Applying the "Serious Value" Exception, in this Context, a Form of Viewpoint Discrimination?

In Part One, I described the statute and noted that it contains an exception for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

I also pointed out that this "serious value" exception might well apply to the creation, possession and sale of videos of animal cruelty by groups that passionately oppose and try to stop such cruelty, such as People for the Ethical Treatment of Animals (PETA). Such uses would likely be deemed by a judge to have serious political, educational, scientific, and/or journalistic value.

But the carving-out of such uses might lead to a First Amendment objection, on the ground that exempting only those uses that criticize cruelty -- as opposed to those that advocate it, or simply accept it without comment -- constitutes "viewpoint discrimination," which is highly disfavored in the First Amendment context.

The argument would be that the same video would be illegal in one instance, and legal in another, based on the point of view of the presenter or creator regarding the acts depicted. Thus, the argument would go, what the law would really be doing is criminalizing point of view – the linchpin on which the "serious value" exception would turn. And of course, from a First Amendment standpoint, criminalizing point of view is anathema.

There are some strong responses to this viewpoint-discrimination argument, however. One is that it's very likely that a court would, indeed, deem videos that expressed contrary viewpoints to have serious value.

For instance, a video of bullfighting in Spain, coupled with an argument for its legalization in America, might well fall under the "serious value" exception -- just as a PETA argument to ban bullfighting worldwide that similarly incorporated video of Spanish bullfighting would. Both would likely be found to have "political" value.

A second response is that the underlying acts – the acts of animal cruelty – are illegal; that is a statutory requirement. (For the purposes of this response, let's put aside the complication regarding the statute's reaching acts that are illegal in the U.S. but not where they occurred.) And that illegality may make a difference.

Surely, the illegality of the underlying conduct should make a difference when the desire to sell a video drives the crime – as is the case with "crush videos," the species of pornography that depends on animals being harmed or killed on video.

But might the illegality also make a difference when, say, neighborhood teens torture an animal, and then an adult neighbor, rather than intervening, instead films the torture and sells the torture video online? The adult's conduct isn't driving the crime, but it is flowing from it and profiting from it, and it would never have been possible without it.

Also, it's not as if the adult neighbor is merely filming a stickball game; he is filming a crime. Is he then also, in a way, a passive accessory to it?

It's very clear that the government, when acting in certain capacities, cannot constitutionally privilege, say, Republican over Democratic viewpoints (or vice-versa); that is pure viewpoint discrimination.

But perhaps the government can constitutionally exempt a video that advocates nonviolent legal change (as PETA's speech does) from prosecution, while at the same time prosecuting the creator of a video that simply depicts violent real-life criminality by third parties, and that was created with no motive but to sell the video to those who will enjoy watching the violent crimes.

Incitement of Violence, Versus the Creation of Violence So It Can Be Filmed, Versus the Filming of Violence in Progress

There's a possible problem with this stance, however, based on Supreme Court precedent: Even the advocacy of violence itself (as long as the violence is not imminent, and the advocacy does not contain a specific threat) has long been held by the Court to be fully protected by the First Amendment.

Yet there are important differences between the incitement of violence and depictions of animal cruelty. Incitement is a case of speech potentially leading to action. A "crush video," in contrast, is a case of action done precisely so it can be incorporated into speech. The very reason the cruelty is being perpetrated, in the first place, is that it will be filmed and the result will be sold. Here, action leads to – and is done in order to lead to – speech.

In the case of incitement, there is some risk that speech will spark violent action. But there is also some risk that a hotheaded protester who employs wild rhetoric could be mistaken for a terrorist, or that the police could use incautious speech as a pretext for an arrest, or could misreport what was said in order to arrest a "usual suspect."

These concerns for the innocent protester, wrongly accused, doubtless motivated the Court when it decided to protect even the incitement of violence as free speech. Arguably, the Court was not so much protecting the culpable speaker who truly did mean to incite violence (albeit not in an imminent or certain way), as it was protecting the innocent speaker who could otherwise be victimized by unethical police.

In the case of "crush videos," however, the violence is part of the package, and there is no uncertainty as to whether it will occur: It is the whole point of the exercise, and the reason it begins.

More generally, too, whether or not the video at issue is a "crush video," the anti-animal-cruelty-depiction statute is triggered only by actual violence. If violence doesn't occur, it never comes into play.

Here, then, we are talking not about speech potentially sparking crime, but about speech as one of the fruits of crime – although, as in the case of the hypothetical neighbor with the animal torture video, the fruits might not be reaped by the original criminal. But they are fruits nonetheless: Had the crime never occurred, the video never would have existed.

Why the Obscenity Law Model May Have Been the Wrong One to Use, and Why the Child Pornography Law (and Other) Models May Be Somewhat Better

At this point, let's take a step back, and consider another issue as well: whether there may be good reasons to be skeptical of the choice to model the anti-animal-cruelty-depiction statute on obscenity statutes in the first place, by borrowing their "serious value" exception.

The fit is obviously a strange one, as we move from the context of consenting adults to that of violently injured or murdered animals. Often, with obscenity, there is no underlying crime at all, let alone a violent one. And the basis for obscenity statutes – which are ultimately religious in origin -- is shaky at best, and a tacit church/state violation at worst.

Granted, some kind of "serious value" exception is surely necessary for the anti-animal-cruelty-depiction statute to work. But such an exception shouldn't have to come verbatim from Court obscenity precedent, and it is worth thinking about whether such an exception should be carefully tailored to fit this new context. After all, the First Amendment would surely have required a similar exception to this statute even if obscenity statutes had never existed -- in order to counter the viewpoint-discrimination objection described above, and in order to protect speech that comments on the violence toward animals, rather than simply exploiting it for profit.

Obscenity laws provide a questionable parallel for another reason, too: Ideally, they will wither away over time. In contrast, with the increasing recognition of animal rights -- or at least of the moral obligation not to treat animals cruelly -- statutes protecting animals in various ways ought to thrive and grow in scope in the future.

Perhaps, then, obscenity laws are the wrong model here. Fortunately, there may be a better one: the laws against child pornography, which are well-established as being entirely constitutional.

As Sherry Colb pointed out in an earlier column for this site, the anti-animal-cruelty-depiction law serves a purpose closely similar to that of anti-child pornography laws: It aims to dry up the market for depictions of particularly abhorrent and harmful conduct.

The child pornography market is centrally based on the suffering that is caused by coercive and often violent crimes. The existence of that market, in turn, inspires and incentivizes those very crimes.
The same points can be made about the market for depictions of animal cruelty: It is based on, and it incentivizes, the infliction of violent crime that wreaks terrible suffering.

Moreover, anti-child-pornography laws do not represent an isolated, one-time First Amendment exception, but rather one instance of an underlying principle. At oral argument, Justice Alito raised the hypothetical of a Human Sacrifice Channel. Presumably, such a channel could constitutionally be banned for the very same reason that child pornography can: to dry up the market for the commission of the underlying violent crime, and to end the suffering such a crime would cause.

Justice Ginsburg's Distinction: In Child Pornography, The Picture-Taking "Is the Offense"

At oral argument, Justice Ruth Bader Ginsburg suggested, however, that there may be a difference between child pornography and animal cruelty depictions. With child pornography, she suggested, "the very taking of the picture is the offense — that's the abuse of the child," indicating that the same is not true with respect to animals.

In other words, Justice Ginsburg suggested that human beings, including children, have a privacy interest that animals lack -- which means that as to humans, but not animals, photography itself can be abuse. The argument suggests, then, that in the child pornography context, there is no such thing as pure speech, but only speech mixed with action. The photography, as Justice Ginsburg said, is the abuse.

Justice Ginsburg's argument shows why child pornography is a relatively easy case from a First Amendment perspective. It also shows why, for example, a crime victim who was raped in public might successfully ask a judge to enjoin the distribution of a third party's film of her rape: for privacy reasons.

But privacy is only one factor here – and other convincing factors still create a strong parallel between child pornography and animal cruelty depictions. In both cases, the speech is sold; it is the fruit of the crime, and often, also its motivation. In both cases, a set of vulnerable victims will predictably continue to suffer gravely unless the relevant speech market is destroyed.

It would be poignant and terrible if – despite these parallels -- animals were to be left out in the cold, legally, simply because by their nature they may be unable to understand their own exploitation beyond the blows they suffer. Similarly, we would be loath to punish child pornography less harshly when the child is too young to know he or she is being photographed, or when the child is mentally-disabled and will never understand that point.

Animals (or, to be more specific, non-human animals) suffer as people do – with modern research revealing more and more about the depth and scope of their emotions, as, for example, Jeffrey Masson documented in his book "When Elephants Weep: The Emotional Lives of Animals." They too deserve protection from markets that create a demand for entertainment that is based on their suffering and death.

Finally, while slippery slope concerns will be raised, they are mitigated by the criminality and violence of the actions that are filmed. This slope doesn't really slip – or if it slips, it slips just a bit, setting a precedent only for also banning nonfiction snuff films, rape films, and the hypothetical Human Sacrifice Channel the Justices discussed.

Rather than touching on the First Amendment's core, such an exception would remain on its very fringes; it is an exception worth making.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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