Supreme Court wonders: Is animal-cruelty porn protected by the First Amendment?
posted at 10:38 pm on October 6, 2009 by Allahpundit
This is one of those kinda fun, kinda jerky free-speech cases that invites the Court to come up with the nuttiest hypotheticals it can think of, partly in order to probe whether the statute in question is too broad and partly just to see which of them can come up with the slipperiest slippery slope. I think Alito’s got this one in the bag.
Good news if you happen to get your rocks off watching women in stilettos mutilate kittens: Based on how the oral argument went, it looks like you can keep your stash.
The law applied only to illegal acts of torturing or killing animals, not legal hunting or fishing. It was intended to dry up the underground market in so-called crush videos, which show squealing animals being stomped by women in high heels. More recently, it has been used to prosecute people who sell videos of pit bulls and other dogs fighting.
On Tuesday, most of the justices sounded wary of reviving the law, fearing it might be used to ban depictions of legal activities such as hunting.
Justice Antonin Scalia, an avid hunter, insisted the 1st Amendment does not allow the government to limit speech and expression, unless it involves sex or obscenity…
Describing a hypothetical scenario, Alito said there might well be a “pay per view” market for programs made outside the United States and beyond the power of U.S. law that showed people actually being killed. He called it the “Human Sacrifice Channel” and wondered aloud whether Congress could outlaw the showing of such programs in this country.
“Live. Pay-per-view, you know, on the Human Sacrifice Channel. That’s OK?” Alito asked.
The statute has exceptions for videos with “artistic or social value,” e.g. an ASPCA film of a slaughterhouse, so in theory there’s no risk that an animal rights crusader’s going to get pinched.
If you don’t believe in obscenity laws as a matter of principle, fair enough, but Scalia seems to, in which case I’d love to know: If filming a couple of dogs ripping each other apart for some degenerate’s amusement isn’t “obscene,” what is? Child porn isn’t protected under the First Amendment because it necessarily involves cruelty to an unconsenting victim; we have a similar situation here, albeit with the wrinkle of having to distinguish “sporting” violence against animals, like hunting where the point is the kill, from “prurient” violence, like crush vids where the point is suffering for suffering’s sake. Is that so difficult? Animal cruelty statutes manage to do it; you could build on those by saying it’s illegal to distribute videos of activity prohibited by the jurisdiction’s cruelty law. Exit question: How “slippery” is the slippery slope here, really?
Blowback
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It’s like child porn. You stop the makers and the purchasers of it.
Blake on October 7, 2009 at 1:36 AM
What day is oral argument? I’ll bring my baseball bat.
Blake on October 7, 2009 at 1:38 AM
It’s not porn. It’s just sick
AsianGirlInTights on October 7, 2009 at 1:51 AM
I am of the belief that no visual depictions or recreations of any act whatsoever should be banned (including snuff films, child porn, animal cruelty “crush videos”, or anything else), even if the act they are depicting is unlawful.
mr_B on October 7, 2009 at 1:53 AM
The artistic or social value of torturing animals on film? How does this even become a debate? I don’t know whether to weep or throw up. It’s about one step on the depravity scale above doing this to people.
The people who create or watch this sort of thing aren’t members of the human race. They don’t even qualify as vermin.
Makes me embarrassed of my species.
MrBrowncoat on October 7, 2009 at 2:45 AM
What DID the Wise Latina woman say about this? The richness of her experiences should help her come to a better conclusion than these white men… right?
scotash on October 7, 2009 at 2:51 AM
Obscenity charges? What the hell ever happened to Felony Animal Cruelty? Where the frack is the ASPCA on this?
Scubafreak on October 7, 2009 at 3:40 AM
“Good news if you happen to get your rocks off watching women in stilettos mutilate kittens: ”
Also good news if you happen to think that the Discovery channel should be able to show a pigmy shooting a warthog with a blow gun.
First amendment, Allah. Your livelihood depends on it; maybe you should study up a bit.
notropis on October 7, 2009 at 4:46 AM
Well golly gee Allah, you pinko, maybe you should join PETA. I don’t know how you even have any cred on this site, let alone one of the top 3 or 4 people. Maybe you should go join your buddies on DailyKos. You’re sure not a conservative.
voxpopuli on October 7, 2009 at 5:02 AM
Or for another example:
If it’s ok to ban depictions of illegal acts, can the government, in the future, ban coverage of acts of civil disobedience?
“This dogfight is illegal; therefore it is illegal to broadcast any depictions of it.”
vs
“This sit-down strike is illegal; therefore it is illegal to broadcast any depictions of it.”
notropis on October 7, 2009 at 5:03 AM
And then there’s all the freaks who claim they would injure or kill a human being, over the injury or death of an animal. Uh . . . yes, every one of you is a FREAK, ok? Because between animals getting harmed and people getting harmed — two evils — I know which I consider to be the lesser. Ok, FREAKs?
voxpopuli on October 7, 2009 at 5:07 AM
“it’s illegal to distribute videos of activity prohibited by the jurisdiction’s cruelty law.”
So if it’s filmed outside the jurisdiction, it’s ok? Or is anything that would be illegal to be performed in the jurisdiction outlawed to be shown in the jurisdiction?
I think bullfighting’s illegal in most jurisdictions. So are many types of fishing. Hunting with a crossbow?
What if someone wants to lobby for changes in the dogfighting laws, by showing real life examples of dogfights, and highlighting that they aren’t really so cruel?
Is that political speech not protected by the First Amendment?
What if someone wanted to drive home the cruelty of dogfighting?
Oh, oh. That would have social value.
So whether or not your speech is protected will depend on whose side you’re on.
Very good. I see no potential problems with this, whatsoever.
notropis on October 7, 2009 at 5:13 AM
I dunno, folks. Just last night I watched an episode of “Man vs. Wild” where Bear Grylls jumped on a tethered pig and knifed it to death. If he’d donned his stiletto heels and stomped the pig to death … would that have been worse?
This seems to me like one of those areas where a ruling against “kitten stomping” is going to be exploited by animal “rights” moonbats to ban all sorts of things. Is sticking a steel hook in a fish’s mouth and pulling it out of the water to suffocate any better than crushing a kitten? How about trapping? You know, crushing an animal’s limb in a steel trap and then clubbing it to death a couple of days later?
If a few stomped kittens are the price of safeguarding hunting, fishing, and animal husbandry, so be it; the more “laws” we give these zealots to work with, the less free everyone is.
sanssoucy on October 7, 2009 at 7:14 AM
Don’t we already have laws which allow us to prevent criminals from profiting from their crimes? Will we soon discover that that too is an unconstitutional and serial killers have the right to sell their clown paintings?
Buy Danish on October 7, 2009 at 7:25 AM
OT but the SCOTUS is hearing the case today where one lone bitter anti-Christian hater can force the destruction of a cross erected after World War One to honor the fallen of that war. Pray that they do the right thing.
highhopes on October 7, 2009 at 7:46 AM
There’s a huge difference between what the law is and what the law should be. Just because you want something to be a certain way, doesn’t mean that a judge has the right to make it that way.
As long as the Court declares that Congress can make some laws limiting speech, there will always be a fight over how much.
He’s right. It’s better to let individuals decide how much regulation they want to live with than to let unaccountable judges decide on one rule for everyone.
JohnJ on October 7, 2009 at 8:24 AM
I was actually coming down on the side of free speech in this case but Allahpundit’s analysis convinced me otherwise.
First time for everything!
HondaV65 on October 7, 2009 at 8:37 AM
I’d imagine the commenter base here to be more on the side of supporting obscenity laws than the libetarian approach of free speech above all else. Don’t mean to go out on a limb or anything.
brak on October 7, 2009 at 8:40 AM
Absolutely.
brak on October 7, 2009 at 8:41 AM
Ok, FREAKs?
voxpopuli on October 7, 2009 at 5:07 AM
Hmmm..someone put their stilettos on the wrong feet today?
lizzee on October 7, 2009 at 9:23 AM
Animal cruelty is a stupid crime. If somebody harms an animal that belongs to another person property rights should be enforced. Currently if the person who owns the animal commits the cruelty we punish with an unnecessary and excessive zoning penalty, felony in many cases. This is nuts, people like to do all kinds of rhetorical jujitsu when they justify the cruel behavior of food providers, but for some reason that is justified, even though there are many different food choices out there than caged and hormone pumped chicken and beef, yet people act as if it is an necessity which it is not. If we find animal cruelty to be acceptable for food preference, then we should find it acceptable for entertainment purposes, which historically it has been.
LevStrauss on October 7, 2009 at 9:36 AM
“Sporting” and “prurient” are such malleable terms. What if a hinting video showed a a hunter skinning a moose? Would it suddenly become illegal if the moose were alive? Should a video of a bullfight be illegal? Or a rodeo, where it’s clear that the bull is suffering with all that extra weight on its back? At what point is the suffering of an animal no longer “sporting”? At what point does it become “prurient”?
AP, you’re trying to draw an artificial line by giving an examples from two different ends of the spectrum [i.e. a simple hunting video and crush porn], which isn’t helpful because the Court has to define a distinction that could apply fairly to two gray situations. Any tinkering with the First Amendment needs to be super duper careful, and the Court should only do it if there’s a particularly strong interest at stake. Protecting children, yes. Warn and fuzzy pets? Not so much.
NorthernCross on October 7, 2009 at 9:40 AM
When judges are required to define the morality of the law, the law has become a soulless corpse.
spmat on October 7, 2009 at 9:49 AM
Who are these women in stilletos? What kind of sickness is that? Laws? What about common sense and decency? I think I’m on the wrong planet……
adamsmith on October 7, 2009 at 9:58 AM
This is just too creepy of a topic for me. *blech*
AnninCA on October 7, 2009 at 9:59 AM
adamsmith on October 7, 2009 at 9:58 AM
You eat chicken or beef? How would you like being caged in a manner that does not allow for any movement and being pumped full of hormones for your entire life until you are murdered? How is that not just as bad if not worse, at least the stomped animals got to move around before they were slaughtered. Then you have types of food like foie gras where the animal is force fed so the delicacy can be properly served. Where is the common decency in that?
LevStrauss on October 7, 2009 at 10:08 AM
I see. And do you have small children — say between 5 and 8 years old — you know, the innocent ones? Would you like to paraphrase what you just said and ask them what they think ethically/morally about it?
Aren’t we just another form of animal? If you can agree with this stuff, you are exactly half a step from agreeing with the people who see nothing wrong with sucking the brains out of a partly born baby because, in their view, it also is property and has no rights.
I notice you call out cruel behavior at slaughterhouses as justifying this type of cruel behavior — the torture of animals for entertainment. As I remember, there are indeed laws against animal cruelty in slaughterhouses. As to whether they are uniformly enforced is another matter.
If you are justifying this by saying that Everyone Does It, that’s a very weak defense.
unclesmrgol on October 7, 2009 at 10:10 AM
unclesmrgol on October 7, 2009 at 10:10 AM
Actually legal and regular slaughterhouse/henhouse is inhumane. The practices I discussed are standard operating procedure. Of course they are animals and thus private property. This has nothing to do with kids, what kind of retarded remark was that supposed to be? Kids are not property, kids merely give partial power of attorney over to their parents until they retain capacity, and I am not the one that thinks that 5 or 8 year old kids should determine policy, that’s what grownups are for. I am not saying because everybody does it, it is ok, I am saying that the demagogues make no sense and are not consistent, selective enforcement of a principle seems to be more inhumane than stomping some chickens.
LevStrauss on October 7, 2009 at 10:24 AM
And as noted, since we are just an “animal”, then the same applies to humans.
Since you don’t believe in a higher God, what would you attribute to the differences between an ape and a human? A dolphin and a human?
right2bright on October 7, 2009 at 10:25 AM
If you want to insist we’re just another form of animal, as a basis for laws, you’ve done a lot more harm than good.
Violence to animals, and by animals, has been entertainment for most of human history. If our culture chooses otherwise, its just a choice, and not some deep mental illness.
Something involving human beings.
You just banned Animal Planet, btw.
Chris_Balsz on October 7, 2009 at 10:38 AM
If the behavior is illegal, how can intentionally documenting the illegal activity, and then promoting and profiting from it be legal?
Would making videos of setting kittens on fire be legal?
profitsbeard on October 7, 2009 at 10:38 AM
This humans being animals thing makes absolutely no sense. Trying to twist arguments to fit some kind of religious sophistry that one is trying to pass as an argument is not a valid argument. Animals are property, people cannot be property. People have laws that protect people and property, trying to make animals some kind of hybrid is inconsistent and the way the priniciples are enforced are inconsistent. My argument is that animals are property and people are not and thus should be treated that way. You seem to be the one that is trying to say that people and animals are one in the same and that is crazy.
LevStrauss on October 7, 2009 at 10:45 AM
LeviStrauss: Yes, I eat beef(love the veal),chicken,lamb,rabbit,pork,fish,lobster,crab,and just about everything else. I have no problem eating veal for instance, in that killing animals for food is just. The “poor” calf in the cage unable to stand is just a sacrifice the animal has to make in order for my meal to be tender and succulent. I’m a human, and I’m at the top of the foodchain. I’m all for hunting animals as well, the only problem with hunting is if the animal is wasted for sport and not eaten. The difference is sustenence vs. entertainment. Also the reason I try to eat Kosher when I can, my understanding is the animal is slaughtered with dignity in God’s name…That’s my way of thinking whether you agree or not. Sorry if I view humans as more important than a chicken in a cage. Then again, I’m not sorry. Sucks to be the chicken….
adamsmith on October 7, 2009 at 10:56 AM
Re: animal cruelty.
There is a difference between wanton cruelty and the cruel nature of killing to eat. The latter is inevitable and part of life, while the former is cruelty for no good reason except to serve some depraved perversion, which is wrong.
atheling on October 7, 2009 at 11:04 AM
I see. If we can’t have perfect enforcement, let’s have no enforcement. That’s quite an interesting position to take, Lev.
I’m not seeing demagogues here, you are. And as for the remark, your slamming it as “retarded” shows it hit home. Kids have an amazingly black and white view of the world before they grow up to be like you. I’m still sort of back there in the kid age — there are things that are mine, and things that are yours, and if I mistreat them (either your or my things), the parents are going to be really and quite rightly upset.
unclesmrgol on October 7, 2009 at 11:39 AM
People have been property, and, in many parts of the world, still are. We fought a civil war over that exact issue, and the only reason people are not property in our country is because the side that won thought they shouldn’t be. Had the other side won, people would still be property.
Such is the law. Now, you admit to laws governing how people can use their property.
We have laws against cruelty to animals, just as, 200 years ago, there were laws against the wonton killing of slaves. In other words, we have had laws throughout history dictating to people how their property should be treated.
That is good, because some Simon Legree-type people just don’t know any better.
unclesmrgol on October 7, 2009 at 11:50 AM
Why does everything that is morally wrong have to be illegal? Is the State the guardian of morality? The Voice of God?
The State’s interest is in preserving social order and protecting property, not personal mores. Murder – social order. Theft – protection of property. Dead kittens – not so much. The Court should overturn the law on 1st Amendment grounds and stay out of the morality business. Morality is an individual responsibility, not a collective one.
mabryb1 on October 7, 2009 at 11:52 AM
Couldn’t they just stomp on animatronic kittens or something? Plush toys? Computer cutouts? Yeah, yeah, I know, not the issue. What can I say, I’m a peacemaker by nature.
It all reminds me of that movie “Gummo”. Please tell me I’m not the only one who sat through that… thing.
Siobhan on October 7, 2009 at 12:13 PM
Those of you who are arguing that this is no different from a NatGeo show depicting people in the wild killing animals for food are either really sick or really stupid. Did you miss the part where AP cited the exception for films of social or artistic value? Can you not see the difference between that and a crush film which serves neither purpose?
As a libertarian-leaning conservative, I have pretty strong feelings about censorship, esp. concerning pornography. I believe producing it and viewing it are both rights guaranteed by the 1st Amendment. But we make exceptions in cases where children are being exploited, or people are otherwise being featured without consent. Yes, animals are not people, I get that. But I see nothing productive in torturing animals to death. It’s inhuman, frankly. We already have laws on the books making animal cruelty a felony (or in some backward states like mine, a misdemeanor). How is this any different?
NoLeftTurn on October 7, 2009 at 12:16 PM
It’s legislating a sentiment. Banning child porn and bizarre obscenity helps humans by preventing recurrence of human abuse. This is just offensive to your sensibilities.
Chris_Balsz on October 7, 2009 at 3:10 PM
Have we really come to a point in society where footage of subsistence hunting and even sport hunting is perceived as no different by many of you as videos of gerbils, mice or kittens being stomped to death by women in high heels as masturbatory aides for people with dangerous paraphilias? Are you guys serious?
I don’t enjoy cleaning or gutting a fish I catch, and it certainly doesn’t arouse me, but according to some of you if I filmed an instructional video of me cleaning dispatching then processing a fish it’s be the same as filming a sadistic sexual perversion and marketing it to the most depraved and dangerous scum in this country?
So what’s next? Footage of Necrophilia? Shall we put Two Girls and a Cup in the Louve? IS there nothing too depraved for some of you? But more importantly are you so disconnected from nature and reality that hunting trapping fishing and trapping is the same as someone masturbating while watching a tiny animal squeal in pain as someone slowly tortures it to death?
Rob Taylor on October 7, 2009 at 4:29 PM
I think the momentum is towards punishing you for molesting the “sea kittens”.
Chris_Balsz on October 7, 2009 at 4:56 PM
Hey, is this your crack pipe?
Oh, no – it’s a silly straw. My bad.
Actually, I guess you could use it – you know, if you lose your crack pipe.
Oh, wait – it’s plastic. Never mind.
John from WuzzaDem on October 7, 2009 at 7:19 PM
Track down the makers of this filth and feed them to piranhas .
borntoraisehogs on October 7, 2009 at 9:08 PM
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