On Trial: Animal Torture Videos vs. Free Speech

Today, the U.S. Supreme Court will hear U.S. v. Stevens. At issue in the case is the constitutionality of a decade-old law passed by Congress and signed by President Clinton in 1999. That law, U.S. Code, Title 18.48, made it a federal crime to knowingly create, sell, or possess a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain. The statute defines a depiction of animal cruelty as “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.”

The law was enacted to prevent the sale of videos depicting wanton cruelty to animals, such as “crush videos” in which a scantily clad woman, whose face is unseen, kills helpless animals such as rabbits and kittens by stomping on them with spike heels or her bare feet. The law also made it a crime to sell videos in which animals were tortured to death by being burned alive, as well as videos of illegal dog fights.

In 2004, Robert Stevens was convicted of violating this law and sentenced to 32 months in prison for selling videos featuring pit bulls chasing wild boars on organized hunts and depicting a pit bull attacking the lower jaw of a domestic farm pig, according to the Philadelphia-based appeals court.

In July, a divided U.S. Court of Appeals reversed the decision by a vote of 10 to 3, overturning Stevens’s conviction and striking down the law on the grounds that it violated the right to free speech guaranteed by the First Amendment.

For more about the case, see this Chicago Tribune column.

For a New York Times editorial supporting the Appeals Court's decision to declare the law unconstitutional on free speech grounds, see here.

Is the New York Times right to support striking down the law banning depictions of animal cruelty on First Amendment/free speech grounds? I don’t think so. There are legitimate limits to free speech, and almost all of these limits are justified on the basis of the harm principle. According to the harm principle, one’s liberty can be legitimately limited when doing so is necessary to prevent harm to others. We don’t have the free speech right to falsely yell “Fire” in a crowded theater because many people would likely be injured in a mad dash to the exits. Similarly, child pornography is not protected by the First Amendment. Child pornography is illegal because we know that if it were legal to make and distribute such pornography, countless innocent children would be filmed being sexually abused against their will and the abusers making these films would profit from this abuse. The 1999 law banning crush videos was enacted for similar reasons. It was enacted to prevent helpless innocent animals from being tortured to death.

This much is certain: If the Supreme Court upholds the verdict of the Appeals Court and deems U.S. Code, Title 18.48 unconstitutional, more innocent animals will be crushed and burned to death in crush videos, and more animals will be ripped to shreds by pit bulls. And the people making these videos will profit handsomely from the torture they inflict on these animals. I hope the Supreme Court will see clear to protect animals from such gratuitous harm and exploitation. Free speech has legitimate limits, and this is one of them.