Cruelty on Video and the US Constitution

Is animal cruelty – itself a crime in the US – on video still illegal or does it fall under “free speech”?  The New York Times explores this complicated issue:

So, in 1999, Congress made it a crime to sell “crush videos” and almost all other depictions of unlawful cruelty to animals. 

The conduct itself is disgusting, of course. But the law does not criminalize the cruelty, which was already illegal in all 50 states, only its depiction. By making such expressions illegal — adding a new category of speech to the very few that are entirely unprotected under the First Amendment — the law raised profound constitutional questions about whether and when the government can decide that some sorts of information have no social value at all. 

The Supreme Court is likely to address those questions soon in the case of Robert J. Stevens, a Virginia man sentenced to 37 months in prison under the law for selling videos of dogfights.

In July, by a vote of 10 to 3, the United States Court of Appeals for the Third Circuit, in Philadelphia, reversed Mr. Stevens’s conviction and struck down the law, saying it violated the constitutional right to free speech.


The law does contain an exception for materials of “serious religious, political, scientific, educational, journalistic, historical or artistic value.” But Eugene Volokh, a First Amendment specialist at the University of California, Los Angeles, said the exception was small comfort. “What constitutes serious value,” Professor Volokh said, “is very much in the eye of the beholder.”

No kidding.  So what are the boundaries and guidelines to be considered when legally determining if cruelty on video is protected by the Constitution?:  

Judge D. Brooks Smith, writing for the appeals court majority, said animals did not experience shame and other psychological harm. “While animals are sentient creatures worthy of human kindness and human care,” he wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace.”

But don’t they?  Don’t all animals suffer when one suffers?  Maybe I am speaking from the heart and not by the rule of law but shouldn’t the two be intertwined?  In the famous words of John Donne:

No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were: any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bells tolls; it tolls for thee.

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