09 October 2009

From Today's New York Times

To the Editor:

Re “Animal Cruelty and Free Speech” (editorial, Oct. 6):

I do not agree that “anyone with an appreciation for the First Amendment” must conclude that “crush videos” or videos of vicious dogfights are protected speech and that the federal law in question should therefore be struck down.

The law speaks specifically and narrowly to the distribution for profit of videos that show illegal acts of cruelty actually being performed on live animals (my italics). Only a very narrow range of activities come under the sweep of this law, and all of them are illegal.

Yes, racists are allowed to “spew racism,” but they are not allowed to encourage criminal activities, and if they were to carry their “advocacy” to the point of distributing videos that depicted the actual maiming or killing of the people they would like to get rid of, they would not be able to claim First Amendment protection.

I am not a fan of pornography, but I find it hard to understand how we can deny First Amendment protection to some depictions of sexual acts performed by consenting adults who at the end of the day collect their paychecks and go home, but must give that protection to those who produce and sell videos that show helpless animals being illegally tortured and killed.

I was privileged to be present in the court when this case was argued. It was beyond refreshing to see a complex question debated with thoughtful intelligence and civility on all sides.

Christopher Anne Affleck
Cambridge, Mass., Oct. 7, 2009

To the Editor:

You make the argument that the First Amendment has historically protected free discourse and should, in the same spirit, protect depictions of animal cruelty. The comparison to Nazi marches and racist hate speech fails to acknowledge a critical distinction—speaking out in favor of criminal activity versus the carrying out of criminal acts.

In the case of dogfighting and “crush videos,” cruelty is not just promoted, but staged. If the Nazi marchers and racist hate mongers “augmented” their activities with videos of graphic violence against Jews and blacks, would The New York Times rush to their defense on constitutional grounds?

Fred Engelhardt
Alna, Me., Oct. 6, 2009

To the Editor:

If the First Amendment protects videos that cannot be made without torturing animals, you didn’t make much of a case for it.

Yes, as you say, the First Amendment allows Nazis to march and racists to spew. But that expression does not require the torture of Jews or African-Americans to produce. While deeply offensive, it is still only words.

The closer analogy here is child pornography. If it cannot be made without sexually abusing children, it has no First Amendment protection. Why are “crush videos” involving animals any different?

They might be different if our Constitution gives live animals no greater consideration than clay pigeons. But the capacity of animals to feel pain makes this case harder than your editorial suggested.

J. Stephen Clark
Albany, Oct. 6, 2009
The writer is a professor of constitutional law at Albany Law School.

To the Editor:

Your editorial states: “The government seems to think it is enough that the harm caused by the animal-cruelty depictions outweighs their social value, but the First Amendment does not say that Congress can restrict speech if it fails a balancing test.”

Why isn’t that your position concerning the ability of Congress to restrict campaign speech paid for with corporate treasury funds?

Lawrence A. Mandelker
New York, Oct. 6, 2009
The writer is a lawyer.