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In an 8-to-1 vote, the United States Supreme Court struck down a 1999 animal cruelty law, paving the way for animal cruelty videos to fall under the blanket of First Amendment freedom of speech protection, which includes all things from criticizing the government to extolling the utility of payday loans. Reuters reports that the previous law was intended to prevent the sale of “crush” videos, a disturbing fetish niche depicting the torture and killing of small animals beneath a woman’s high-heeled shoe. The Supreme Court is now saying the 1999 law was too broad since it made things such as bullfighting and the sale of some documentaries illegal. Concerned that this could be viewed as government censorship, the Supreme Court struck down the law as invalid under the First Amendment.

Only one is illegal while the other is not between animal cruelty and animal cruelty videos?

Justice John Roberts, whose 20-page opinion expressed the view of the majority regarding animal cruelty vs. animal cruelty videos, wrote that “there is no evidence of a similar tradition prohibiting depictions of such cruelty.” Robert Stevens of Virginia, who made and sold videos of pitbulls, wild boards, and hogs fighting each other may very well have his 2005 conviction in United States v. Stevens, No. 08-769 (which is still under appeal) overturned. The Justice Department lawyers argues animal cruelty videos need to be treated like child pornography, which is not protected by free speech, but the Supreme Court didn’t agree. The lone dissenting voice – Justice Samuel Alito – said “the law could be validly applied to at least two broad categories of expression: crush videos and dog-fighting videos,” according to Reuters.

Advocacy inciting lawless action

Here is the U.S. Supreme Court’s take on free speech:

“The U.S. Supreme Court has held that government may not prohibit speech that advocates illegal or subversive activity unless ’such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’ (Brandenburg v. Ohio, 395U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]).”

Notice that advocacy inciting lawless action is not permitted. The common Brandenburg test cases the Supreme Court cites involve different situations where politically charged or subversive speech is to be “mere hyperbole” since they do not connote a threat “intended to be acted on at a definite point in time.” Some argue that animal cruelty videos involve a filmmaker who is complicit in an illegal act. If it is illegal to be cruel to animals, then why is filming the event happening in order to take credit card orders and deliver ok as part of free speech? This is not a matter of intent once the act has already been filmed since the illegal act has occurred. The success of such videos might cause parties to film more videos after developing an audience for these films which might be considered inciting further lawless action.

And what about obscenity?

The Supreme Court has been having trouble defining this clearly over the years. Justice Potter Stewart once said “I know it when I see it,” which didn’t help matters. But there is the Supreme Court’s three-part test to determine obscenity:

• The average person, applying contemporary community standards, would find that its predominant theme appeals to a “prurient” interest
• It depicts or describes sexual activity in a “patently offensive” manner
• It lacks, when taken as a whole, serious literary, artistic, political, or scientific value (refers to Miller v. California, 413 U.S. 15 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).

How do crush videos and animal cruelty videos stack up? The average person likely would not find that either incites sexual desire, but would they appeal to another’s prurient interest. Absolutely; it’s why they’re made in the first place. Regarding the second point, the average person likely finds both types of videos offensive. Finally, regarding a lack of value, neither type of video is literary or overtly political. Some people might attribute artistic or scientific value to crush videos or animal cruelty videos. These are people you don’t want to know.

Article sources

http://www.reuters.com/article/idUSTRE63J3IO20100420

http://www.scotuswiki.com/index.php?title=United_States_v._Stevens

http://legal-dictionary.thefreedictionary.com/First+Amendment