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Will The Supreme Court Uphold Ban on Animal Cruelty Tapes?

Updated on October 6, 2009

Constitutional Law and Free Speech Clash with Animal Rights

Robert Stevens was convicted under a federal law for selling videos depicting dogs hunting for and attacking pigs. After a federal conviction, Stevens appealed. The normal process for appealing is to first go the Circuit Court of Appeals in the circuit where the conviction took place. Stevens won at this level. The circuit court threw out his conviction on the grounds that these videos are protected as constitutional free speech, and that the law was overbroad. However, the US Attorney may appeal in such a case to the US Supreme Court if it involves issues of constitutional law.

The Supreme Court normally has full freedom to either accept or reject an appeal. Once having accepted an appeal, the parties are allowed to appear and have oral arguments. The Court agreed to hear this case. Arguments in this Stevens case for sale of videos depicting animal cruelty took place on Tuesday, October 6, 2009. It will be several months before the Supreme Court issues its final decision. For the reasons stated below, I believe the US Supreme Court will invalidate this law as a violation of the First Amendment right of free speech.

There are some limits to the First Amendment's right of free speech. The classic example is that a person cannot yell "fire" in a crowded theater. The reason for this is that such speech creates an immediate danger to the public. Likewise, hate speech is generally protected by the First Amendment so long as it does not create an imminent threat to public safety.

Because these tapes do not present an imminent threat to public safety (as they are normally watched in the privacy of a home), the law banning sales of tapes depicting animal cruelty cannot withstand constitutional protection on these grounds. In such a case, Robert Stevens cannot be convicted of a crime based on this statute.

However, it is not quite that simple. The Supreme Court has a number of complicated rules it uses to determine if a law violates the Constitution. It would take months to discuss all of these, so I will narrow it down to the rule applicable in this animal cruelty case. For the government to prove that this law is constitutional, it must convince the Court that the law is narrowly tailored to serve a compelling government interest. This is an exceedingly high standard for the government to meet.

While animal cruelty is a very serious and emotionally charged issue, animal right activists cannot simply appeal to emotion in this environment. Remember that this is not a jury. These are justices on the US Supreme Court who must be convinced, and such justices would rarely be swayed by emotion. The justices go by the letter and spirit of the law and whether it logically meets constitutional standards.

And when they have applied these standards before, the Court has quite consistently invalidated statutes that attack wholesale bans on speech. While the Court will often allow the government to prescribe certain limitations on speech (such as the time, place, and manner of expressing speech), we are talking about a complete ban here on animal cruelty tapes. This is pretty much the opposite of a law that is narrowly tailored to serve a compelling interest.

Even tapes of simulated (but not real) child pornography have been held to be constitutionally protected free speech. On the other hand, the Supreme Court upheld the ban on tapes of actual child pornography. Will the Court treat animal cruelty tapes on the same level as child pornography tapes? I have my doubts, but it is possible. I mean, if even simulated child pornography is protected as free speech, it would seem odd to allow a ban on simulations of animal cruelty. So the difficult part for the government is to show that the law is narrowly tailored.

The government should have a much easier time showing that it has a compelling interest. The compelling interest in this case is to stop distributors of animal cruelty tapes from profiting off of this offensive material. The Court has found that things such as diversity in the classroom was a compelling interest, so many things will qualify as a compelling interest. However, the government must meet both tests, and it will likely lose the "narrowly tailored" part of the constitutional test.

None of this means that I approve of these tapes. I think they're horrible, Robert Stevens should find a different way to put food on the table, and I don't want to watch them. Animal cruelty is an especially important problem because there is some evidence that animal cruelty is a precursor or "gateway" to even more violent behavior and even serial killings. But this is an issue of law, not emotion. If unpopular speech were not protected, then no one would be free unless they agree with the majority. According to the Constitution, that is not a free country.

However, I think a law that simply banned the profits derived from such tapes might survive constitutional scrutiny. But this wholesale banning of tapes depicting animal cruelty is probably overbroad. An overbroad law is unconstitutional, and the government may have to narrow the law in its attempt to rein in the animal cruelty problems that plague the country.


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