All right, let’s discuss this free speech thing…
Apr 22 2010
Animal welfare groups are having kittens (I know, I know, bad pun) over the Supreme Court’s recent ruling that even videos that depict wanton animal cruelty deserve free-speech protections under the First Amendment. The Supreme Court ruling had to do with a guy who sold pit bull fighting videos. While I am certainly HUGELY opposed to dog-fighting, I agree with the Court’s decision, and I’d like to explain why, and then we can discuss it:
Limiting free speech is an extremely slippery slope. Let’s say we make it a crime to film acts of animal cruelty and sell the footage. Sounds good on the surface, right? But here’s what you’ve just made illegal:
- The kind of undercover video of animal cruelty we saw with Amanda Sorvino’s Bravo Packing expose or the HBO documentary “Dealing Dogs.”
- Covertly filming a trainer beating the crap out of a horse at a show so that you can send that to me for this blog.
- A tourist filming animal abuse on his vacation in a foreign country, who brings the footage back to America to try to take it to the media and gets caught with it in the airport.
Now, I’ve tried to think of ways to draw this distinction. How about saying it’s illegal if you’re doing it for profit. Um, fail again. I have advertisers, the news sells commercials, we all could be accused of profiting off of graphic video if we cover the story. Alright, now we’re stuck with intent. Intent, always a hot button issue because it’s subject to interpretation, is the reason you can take pics of your child at bathtime and not be prosecuted for pornography. But when I try to write down a definition of what kind of intent is okay and what isn’t, even I get stumped. There’s a reason Justice Stewart once said, with regard to pornography, that he knew it when he saw it! Ooooh boy. I’m not particularly comfortable with a law based upon someone’s personal opinion like that. I mean, I’m gonna hazard a guess you could pull out a fair number of members of Congress who think homosexual pornography should be illegal just because they are personally squicked out by it. Heck, don’t half our states still have stuff on the books prohibiting sexual practices most adults, gay or straight, engage in? You can see how tough it is to draft these laws. I like the idea that the Supreme Court rules on the side of free speech more often than not.
The original author of the law that was struck down is trying again with a more narrowly drafted bill, and I think he may get this one to stick, though I haven’t read the text of it yet:
Local congressman introduces new bill to stop the sale of animal cruelty videos
But honestly, I’d rather see our focus on prosecuting the acts, not filming or selling them. Hello, when those videos are produced and sold, we have a trail of bread crumbs that leads law enforcement RIGHT TO those freaks. How many child pornographers do you think we’d catch without a money trail and evidence? Not to mention their equally freakish customers. Do you think we catch it when some miscreant is abusing their child in their home? The only way we catch that is if the child is brave enough to talk. And then the child’s truthfulness may be questioned. Films and photographs are hard evidence of crimes. They are disgusting and we all hate them, but they are PROOF that can be used to LOCK THE FREAKS UP.
We do not necessarily need extra penalties for filming cruelty. We need stiffer penalties for performing cruelty and much better enforcement. So, Mr. Stevens the dog-fighting video guy, go make some more. Make sure to show some human faces. Film some license plates, pan around and accidentally catch some of the property where it’s taking place. Have a nice cold six-pack while you’re filming, get a little sloppy. Go for it!
That’s what I think. What do you think?
Oh, and for those of you who think it’s ok to give kittens away for free to anyone who “seems nice,” welcome to reality. If you’re too lazy to get your barn cats in to be spayed, you might want to watch one of those “crush videos” for a little motivation!
Reposting this becau se she still needs a home and is only at the trainer’s for another week so I’m hoping someone may be interested in meeting her! 
For those of you who might have an empty stall waiting for a super snuggly Thoroughbred mare, I am pleased to announce that Exclusive Report, who you may recall got rescued from last fall’s Enumclaw auction, has completed 60 days of professional training and now needs a home to continue her riding career. “Hope†as we call her, is at that point where she is very well behaved with experienced riders but not ready for inexperienced ones. We think her ideal home would be a flat hunter/dressage home (although there is no reason she could not be started over low fences, too) with a quiet, soft handed rider with no temper. If you love snuggly “pocket ponies,†this is your girl – snuggly without being annoying or pushy. Send me an e-mail with HOPE in the subject line if you’d like to know more about her. She is in the Seattle area.
90 comments to “All right, let’s discuss this free speech thing…”
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I think freedom of speech is one of our most important rights as Americans. (Think about it: What if you could be arrested for blogging about whatever politician you don’t like?!)
I think this decision is an excellent one.
People need to look past the images of suffering animals and think about what would happen if it was illegal to record animal abuse… Would you want to be arrested for posting pics of your neighbor’s starving horses?
Videos and photos provide critical evidence to prove crimes. Making it illegal to film things would mean a lot of abusers would be able to get away with it. Be careful what you wish for.
But the law that was struck down wouldn’t prevent you from filming your neighbor’s starving horses, unless you were going to sell it.
I think a lot of opinions (including the SCOTUS majority) are based on a law that wasn’t actually on the books.
I disagree, and what is profit anyway? You are thinking monetarily, but what if implied benefit comes into play? Am I profiting if my reputation is polished and I wind up as mayor due to my activism? Slippery slope, indeed.
The ACT of crushing the kitten is illegal. That’s enough. Go, get those people and prosecute them. Possibly prosecute the filmer for something else, such as aiding or abetting a crime if they were endorsing or intending to profit. We don’t need new laws, we need to enforce existing laws.
Exactly! A good lawyer could probably convince juries that there is potential for profit in almost any recording or photo, even if the video/photo itself is not sold.
So, if this law were passed, the animal-abuser’s defending lawyer would simply have to do the following:
1.) Prove the videographer profits off of the tape. (Advertising, personal publicity, votes… lots of non-cash gains could be considered profits)
2.) Ask the judge to throw out the evidence based on the fact that it was obtained illegally. The jury won’t even know about the video, let alone watch it!
3.) Successfully defend the abuser because now there’s no proof of wrong-doing!
I used profit as shorthand for ‘for commercial gain’, which is what the statute says. Distributing it to enhance your place in the community might lead to commercial gain somewhere long down the line, but it would need to wander through the political speech exception also built into the law.
The Court’s job isn’t to decide what is or isn’t good law, just what is or isn’t Constitutional. Yes, we can still prosecute animal cruelty without this law, the sky will not fall. My objection is to the Court overstepping its bounds.
How about that the person filming must intend for the video to help put an end to the abuse? If they can prove in court that they sent a copy to animal control, or posted it online and asked people to identify the abuser and push for prosecution, that’s clearly for the animals’ benefit. And I wouldn’t go to the extent of prosecuting someone solely for releasing the video, but use it to aid ongoing abuse cases – prosecute the person taping as an accomplice if they don’t cooperate 100%, or increase the sentence if the abuser was the one taping.
Outlawing of these videos would simply send the sale of them underground. After all child pornography videos are not sold openly but still are circulated. This proposed law would simply result in the arrest of people trying to get proof of animal cruelty and not stop the cruelty. Those responsible for these horrid acts are not going to think “Gee we cannot sell these videos legally so we had better not carry out our planned cruelty”.
Amen! Let them hang themselves by providing their own evidence. The only thing I could think of to put on the books would be maybe making it illegal to film the animal cruelty while acting as a participant? Maybe that would give the courts one more thing to charge the abuser with? Sorry, that’s the best I can do. The only laws I am familiar with are traffic laws (or traffic suggestions as I called them when I was younger). My shoddy driving record is a testament to that.
Holy shit, after commenting I hit google and found out what a crush video is. Sick, sick, sick. Now that shit should be illegal, right up there with child porn. Illegal to produce, distribute or possess it.
Well said. I don’t want to be a part of dog fighting, and do not care to watch it, but if the films are not from the US, and not part of an undercover operation, then who are we to take them to account. I’m not a fan of any kind of porn either, but it’s out there also. One does NOT have to watch such stuff if one does not want to.
Actually, the supreme court has made it legal for consenting adults to do whatever they want in private. I was living in Houston when the gentlemen who took it to the supreme court were originally “busted”. A neighbor who didn’t approve of their lifestyle tipped off the police that they were cooking up drugs or some such made-up charge. They were tried and sentenced for their consenting homosexual behavior, then took it all the way to the top on appeals! Take that, Texas! (Texas is a state of mind, and I’ve had therapy!)
Lawrence V Texas?
Every constitution/law class I’ve ever taken has talked about that case (Including the one at Baylor)
That’s the one! Very big news at the time and 3 cheers to Mr. Lawrence for taking it all the way. For the record, I’m completely straight, but had a couple good friends during my formative college years who weren’t.
I think you’re right, this is not a good place to restrict freedom of speech. Not only is restricting freedom of speech a very dangerous path to start down, there are many occasions where we need those videos to try and stop the abuse as you pointed out. Note that the court ruled that videotaping dog fights is protected – it did not rule that dogfights are protected!
I’m generally against the idea of tacking on additional offenses to something that’s already illegal. By the bill writer’s logic, banning the videotaping of dog fights will help prevent dog fights. To take it a step further, we could ban whips, and then no horse would ever be unfairly whipped again. That’s great, except now you’ve criminalized all the legitimate uses of whips as well, and the abusers will just paint their whips orange and call them ‘carrot sticks’.
We already have laws against animal abuse. Enforcing the laws we’ve got will get us much further than making more laws. (This is also why I’m generally against gun control, but that’s a different kettle of fish.)
I do not understand.
As a British person born bred and a few generations in, I have total freedom of speech, this is not an American privilege.
BUT I understood that your right to freedom of speech was actually protected in the Bill of Rights?
Without actually changing the Constitution, how can anyone limit freedom of speech??
As to the videos, if these things are illegal, why are the perpetrators not being arrested?
What is the point of laws if they are not enforced?
“Without actually changing the Constitution, how can anyone limit freedom of speech??”
That’s how it SHOULD work but I’ll tell you, people try ALL the time.
Example: When I was in high school, you could not wear a shirt with writing on it. Helloooooo you just limited my freedom of speech. I understand saying no shirts with obscene or suggestive sayings, but this was ANY shirt with WORDS on it. I could not have worn a shirt that said I Love My Horse. And this was PUBLIC school!
Was that pre- or post- Tinker?
My constitutional law teacher went on a tear about this last night… what really got his goat was Roberts mentioning that this law could stop hunting videos. Funny thing is, the conduct being filmed had to be illegal under state law, and all state animal cruelty laws have specific exceptions for hunting. From paragraph (c)(1) of the statute:
the term “depiction of animal cruelty†means 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 under Federal law or the law of the State in which the creation, sale, or possession takes place , regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State;
The law that was struck down had specific exceptions for works of serious religious, political, scientific, educational, journalistic, historical or artistic value… I understand that you object to any limitations at all, but any of the examples that you gave could fit into one of those categories (not to mention, several of them aren’t for commercial gain). According to the Court itself, if a statue can be read in a way that doesn’t contradict the Constitution, that’s how it’s supposed to be read.
We have plenty of exceptions to freedom of speech- you can’t yell ‘fire’ in a crowded theatre, you can’t drive a person to suicide, you can’t conspire to commit a crime. It requires balancing the state’s interest in regulating the speech with the individual’s interest in making the speech. I don’t find the slippery slope argument very convincing- there’s speech that meets the balancing test, and speech that fails it. If speech fails the balancing test, Congress gets to regulate it when it has the political will to do so. If you don’t like it, it’s for Congress to repeal, not the Court to overturn.
Again, I disagree. Free speech is protected unless your right to free speech impinges on my right somehow. “Fire” in a crowded theater impedes my right to safety, etc.
I have no right no not have to be careful about what videos I watch. There is no impingement of right by allowing someone to videotape something. Legal or not.
The balancing test does not apply – as there is no commensurate right to balance against.
Sorry, you had a lot of double negatives there, but I think I get your meaning.
The interests of the state are not the same thing as the rights of its citizens. Every time a state expresses an interest, it doesn’t have to be based on protecting a citizen’s right.
In this case, the interest of the state would be in punishing people who realize commercial gain from the sale of videos depicting criminal behavior, which thereby encourages that criminal behavior. The interest of the citizen is in the ability to realize commercial gain from that video.
We already have an example that has been brought up quite frequently: child pornography. Distributors do not have to be involved in the underlying crime in order to be prosecuted for selling the videos. This is constitutional.
All ofyou (especially you, Cathy) should try to read the full text of Justice Alito’s dissenting opinion and the legal analyses on several animal law websites written by those who know the law and understand the potential unintended consequences of overturning this law – from the standpoint of the wellbeing of animals. If you don’t want to read anything written by lawyers then perhaps the Care2 site can offer you an analysis with less “legalese.”
All of you (especially you, Cathy) really need to educate yourself on the background of this extremely influential decision and if you wonder why I say that please try to read some of the factoids the US Supreme Court based its decision upon. This decision is not what it appears to be on the surface nor is it “really” about upholding Constitutionally protected freedoms.
Please read everything you can on this and please read for comprehension.
It’s a little sad… most of the media outlets aren’t even citing the name of the case. I also found one article that quoted the definition of animal cruelty but stopped right before the part that explains why it wouldn’t cover hunting.
It definitely isn’t a case where you can get away with not reading the statute. Incidentally, it can be found here:
http://www.law.cornell.edu/uscode/18/48.html
This would also impact hunting (and in some circles) fishing videos.
While Roberts certainly seems to think that it would, that is not the case. The law only prohibited depictions of animal cruelty activities that are illegal under state or federal law. Hunting is not made illegal by animal cruelty laws.
Given that the Supremes have historically been willing to lock people up and throw away the key for “kiddie porn” involving no actual children but rather computer-generated images, I think this verdict is obscene. I thank Judge Alito, with whom I rarely agree, for apparently being the only one on the Court with a heart, a brain, and correct priorities.
We won’t even go into the long history of case law overreaching on interstate commerce, which has been used on far more trivial stuff than this and should have been here.
And prosecuting cruelty and prosecuting those who make money off of glorifying it is not an either/or, it is a blueprint for success.
I note that while the congresscritters are racing to create a narrowly defined law on crush videos, they’re completely ignoring all the other types of torture and cruelty glorification out there. I hope the citizenry finds some way to ensure that the original perp never has a happy moment for the rest of his sorry life, and I also hope he lost his shirt appealing the case to the Supremes. Though I’m sure his thug buddies chipped in.
Well I noticed the perp had a VERY expensive lawyer. Akin Gump is a serious firm. SOMEONE chipped in, or his ill-gotten gains funded it.
The activity would not stop just because people aren’t publicly filming and selling it. Good grief, isn’t it hard enough to get the courts/AC to do anything even when you have solid evidence? The last thing we need is a law preventing us from gathering such crucial evidence.
I *hate* when people just give animals away for free. It isn’t a bag of old clothes for god sakes! Its a living breathing being that depends on YOU completely. Once you take ownership of an animal, YOU are completely responsible for its health and well being. The animal will need you even when it grows out of its cute baby stage. If this is too difficult to understand maybe just stick to plants.
Sorry, I have seen this exact situation happen far to often. End rant.
People who want their “15 minutes of fame” often get more than they bargained for — the teens smashing mailboxes with baseball bats on country roads, videoing their shenanigans; teens setting fires while others video them. Teens fighting at school or at parties, video cameras taking everything in, etc.
Free speech is a slippery slope, though I note that one side of the aisle in Congress complains if the “speech” does not mimic theirs or praise them for their decisions. I prefer the saying, “Your liberty stops where my nose begins,” but that has more to do with property rights than speech. The thing is, we can always turn off the radio or change the channel if someone is waxing poetic and is dead wrong (in our humble opinions ;o)
I am German born and migrated to Australia when I was 16. I have travelled extensively all around Europe, by myself as well as with my family and I have never even HEARD of a crush video before OMG does most of this sick stuff originate in the USA or what xD
And I agree with the decision not to pass this law obviously, but I think a lot of people will take it as a decision against animal welfare because they are simply to lazy/simple/whatever to actually USE THEIR HEAD and think about the implications… You pretty much have to force feed those people useful information.. And even then they might still refuse to see what is right before their eyes… I don’t like humanity
Actually MOST people in the U.S. have never heard of it either.
I only know this stuff from being involved in animal rights. Trust me, I have seen/heard about a lot of things that remind that ignorance IS bliss.
Hm I had a bit more of a look on google and it appears that a lot of that stuff is based in China…? Ok, sorry you guys in the USA, apparently it wasn’t you (lol)
I also know that often you’d rather not know and continue on in blissful ignorance but I see it as a duty that we do know these things so we can change them and also so we can make informed choice. For example, there is a petition going around on Australian horse rescue websites concerning labeling for pet food. Asutralian pet food producers are apparently currently not obliged to declare horse meat in their products on the label. I would gladly pay the extra dollars or spend my money somewhere else to ensure I do not support horse slaughter without knowing it
Lol, you get what I’m saying I guess
Fugly, I agree with you completely!
FYI, the legislation had safe harbors for video that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value” so if you were videotaping to expose the abuse, you would not be in violation.
I think Alito got it right (sole dissenter)
Take a break and read the opinion and dissent. Well worth the time & effort. PDF is at http://www.supremecourt.gov/opinions/09pdf/08-769.pdf
Isn’t there a narrower application of the law that pertains to (videoing) acts that are illegal… fighting dogs to death, crushing small animals, abusing children… why are legal activities (hunting/fishing) muddying the waters???
Regarding freedom of speech: JUST BECAUSE YOU CAN, DOESN”T MEAN YOU SHOULD!!
I didn’t read the full ruling, but in the NY Times article about it, I couldn’t quite swallow this justification from Chief Justice Roberts:
Chief Justice Roberts rejected the government’s analogy to a more recent category of unprotected speech, child pornography, which the court in 1982 said deserved no First Amendment protection. Child pornography, the chief justice said, is “a special case†because the market for it is “intrinsically related to the underlying abuse.†[http://www.nytimes.com/2010/04/21/us/21scotus.html]
So the markets for crush videos and dog fight videos aren’t intrinsically related to the underlying abuse? What is he basing that assumption on?
The law may be overly broad, but if this is the justification for striking it down, I fear it just perpetuates the idea that animal cruelty is kinda, sorta illegal and bad – but not *that* bad, because it doesn’t harm people.
I don’t see why it would be impossible to determine someone’s intent in filming animal cruelty. Are they taking the videos to animal protection groups? Or, are they selling them for entertainment purposes?
“I don’t see why it would be impossible to determine someone’s intent in filming animal cruelty. Are they taking the videos to animal protection groups? Or, are they selling them for entertainment purposes?”
I agree. That’s the question. What do you do with it? What you do with it is an ACTION that is a LOT easier to define, under the law, than your INTENT.
Of course if you go to any website dedicated to dog fighting, they all open with a disclaimer that the text held within is purely for historical documentation of a dog breed they love. The step by step instructions telling you how to prep your dog for a fight is to be read as a “how it was done in the old days” not a “how-to” manual.
It’s all bullshit.
How many people were prosecuted under that law while it was on the books for filming with the intention of exposing active, illegal animal abuse? Yeah, none.
And yeah, the victory for this dog fighting asshat was won on the backs of thousands of dead dogs.
You can buy the pro-dog fighting magazines in the pet shop in Sylmar, California. I know that for a fact.
You know what they did there? $5000 reward for information leading to prosecuting a dog fighting person. Works GREAT. I think they got 60+ of them so far. Probably cost less than this one criminal case, too…
The only exception the law made was to any depiction “that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” Does this blog fit that definition?
The government actually went so far in their brief as to argue that depictions of animal cruelty should “be regulated as unprotected speech.” Whoa. If I’m going to support a law like this, I need to see how it would definitely not apply to anyone using or making such footage in an attempt to achieve a pro-animal objective. The way it was written, I agree it was overly broad and could have been misconstrued. I do agree that the hunting analogy was silly because clearly hunting is far afield of the reach of the bill. A better analogy would have been what I said about documentaries like Dealing Dogs, in which, some of you may remember, the cameraman watched and filmed a dog being shot to death. The end result was the whole business got shut down and federal charges brought against the kennel owner. A great end result that may not have happened without such shocking footage. And yeah, people made money off that documentary. So what? That doesn’t make it a crime.
The problem is, the Court shouldn’t be a stop-gap for laws that are just bad ideas. They’re 9 appointees for life, and they’re only supposed to put the breaks on laws that are unconstitutional.
Personally, I think you have the burden backwards. When the Court waxes poetic on Constitutional interpretation, they’d agree with me. Unfortunately, the Court doesn’t walk the walk.
This. The Court has always afforded political speech the highest protection. This certainly isn’t anything akin to political speech.
I think Fugly makes an excellent argument when she says these videos are a means to catch perpetrators. On the flip side, they also make the conduct many times more lucrative. You are no longer stuck with the limited profits you might make from simply charging for admission for an in-person viewing of your dogfights; you can reap some tidy profits by inviting the world into the ring through pay-per-view. Which further incents people to engage in the conduct we find abhorrent.
We don’t know if Akin Gump took this case pro bono. If they did not, I’m rather frightened of the spectre of people who might have financed such a defense. Possibly the legitimate film industry; possibly videographers taking pictures of material we would all agree are serving zero beneficial purpose in society.
“I think Fugly makes an excellent argument when she says these videos are a means to catch perpetrators. On the flip side, they also make the conduct many times more lucrative. You are no longer stuck with the limited profits you might make from simply charging for admission for an in-person viewing of your dogfights; you can reap some tidy profits by inviting the world into the ring through pay-per-view. Which further incents people to engage in the conduct we find abhorrent.”
But also allows us to identify many more of those people via credit card transactions. It’s not like it’s a cash only transaction in some back alley.
Now, does the accessibility of illegal materials online actually encourage criminal behavior? Probably the answer is yes – due to the illusion that everything you do online is invisible, which as we all know is not true. So people who just have certain inclinations cross the line to actually indulging those inclinations. But perhaps a good scare about legal ramifications is what a lot of borderline types (those who would watch the illegal acts but not actually commit them themselves – at least not yet) need to get “scared straight.” It’s certainly an interesting discussion.
And actually, can some of you legal minds explain to me why then child porn videos are illegal? Or hey, what about snuff films? I mean the rape of the child and the rape and murder of the victim are the true crimes, so why are my first amendment rights being violated by these laws keeping me from buying, selling or screening videos of the acts?
In any event, you guys might be happy to hear what happened to one woman in china who participated in a crush video. Apparently online vigilantism in China is huge (NY Times article: http://www.nytimes.com/2010/03/07/magazine/07Human-t.html). A video of a woman crushing a kitten to death with her heel was posted online. Disgusted Chinese internet users used landmarks in the video to figure out what city she was in, found out who the woman and cameraman were and disgraced them out of their jobs (she was a NURSE!) and their homes. Pretty harsh, but I’m betting they don’t go crushing kittens to get off again any time soon.
Because you can’t legally do any of that to children, not ever, no exceptions. You can legally kill animals – ever had a hamburger? That’s why they drew the distinction.
Sure, but naked bathtub pics have been used to prosecute people for child porn. Certainly there’s a “know it when I see it” element to anything that’s filed under being icky like a convicted offender found with naked bathtub pics versus a mom with the same.
I guess this is my in-eloquent way of saying there should be a law on the books that explicitly makes dog fighting, horse tripping, kitten crushing videos illegal for sale and distribution in addition to the acts themselves being illegal. Murder is illegal, snuff films are illegal, but horror movies where dozens of people are graphically murdered are not. As a society we seem to be able to make that distinction. And I think the men and women of law enforcement, the bench and juries could figure out the differences between a legitimate hunting video, an investigative undercover slaughter video and an illicit dog fighting video.
Perhaps this particular law wasn’t the most concise, but I really believe we can have a law on the books that makes distributing cruel videos illegal without the 1st amendment going to hell in a hand basket.
Oh, I do too! I just think this wasn’t it.
I actually think you have some good questions there. I’m not a criminal law expert, so I don’t know – but what if someone were using a CGI child to depict a sexual act with a child? That’s certainly not child abuse, because no child is involved. So the conduct being filmed isn’t illegal. Can the states ban what is in effect the simple promotion of such acts? I do not know. If they can, it supports your argument that the Court’s decision can’t be squared with all our child pornography laws. If they can, then it supports the Court’s position that you cannot criminalize the depiction of an act which is itself legal.
What about an artist who paints a picture of it? They could either be using it as porn, or they could be painting a horrifying moment from their personal past. Surely that should not be illegal? (What if they sold the painting?)
What if you photoshop a picture of a real kid into a sexual situation? The real kid was not harmed or abused, but their real image (not painted or CGI’d) is being used sexually.
The child porn law is already a pretty slippery slope. Dad can get arrested even if his 17-year-old daughter posted nudie pics from his computer. Her boyfriend can get arrested if he downloaded those pics! EVEN IF HE IS ONLY 17 TOO! Is that right?
Of course I think any sexual act to a child should be illegal, but I’m not sure the child porn laws are entirely fair. Sometimes they can’t prove a suspect actually comitted the abuse itself, so they arrest the guy for the child porn. It’s a means to an end, I guess.
It’s a very interesting discussion. If someone with urges toward children could be satisfied by CGI imagery and never act it out in real life, that would be great. The question is, what percentage actually do act out their fantasies, and do we have any way of knowing what makes them cross the line from fantasy into doing something to an actual child?
I don’t know, just throwing it out there for discussion. I don’t know what the psychologists say about what puts someone on one side of the fence or the other. Many, many people have inappropriate fantasies, whether they involve something sexual or shooting their boss or dragging an animal abuser behind their truck — but we don’t act on it. What factors cause someone to act on those inappropriate fantasies, and do depictions of those fantasies in entertainment play a part in causing someone to cross that line? Now you get into that whole question about violent video games, rock stars singing about suicide and drugs, you name it.
Don’t even get me STARTED on video games and rock stars!! No way can they be held responsible for what the consumers do after experiencing their products.
If I couldn’t open up a game of DOOM and shoot the crap out of some aliens to relieve stress, I might finally snap and go after real people who annoy me…
I am old enough to remember all the DRAMZ in the 80s when Ozzy Osbourne was supposedly causing teens to kill themselves.
Uh, no. Lack of self-esteem coupled with hormones gone wild is why some teens kill themselves. Tragic but NOT due to rock music.
It’s interesting – just perspective-wise, C, how you keep returning to whether the videos themselves are stimulating the consumer. I can certainly see why you would probe that line of inquiry, but I am not sure that the purpose of the statute was to “un-whet” the appetites of consumers. It could be that was the purpose for it, but I see something else at work.
I see the statute more as an attempt to stop the income stream for people participating in this activity, from the person holding the dogfight, through the paid camera man, all the way up to, and including the retailer – in other words, everybody making a buck just short of the end consumer. Only one of them is actually holding the dogfight, but the other two are profiteering from it, and through the prospect of additional income, incenting the perpetrator to keep conducting such “events.” It is very close to the idea of punishing someone for knowing receipt of stolen property. The individual didn’t steal the property, but they’re profiting from someone else’s criminal activity, and creating a market for stolen goods, something the legislators want to discourage entirely.
I agree that the intent of the statute was to stop the income stream – the incentive for selling these materials. I just didn’t like the way it was written.
Trust me, I do NOT have a problem with prosecuting people like Mr. Stevens – I just want to make sure any law doesn’t interfere with freedom of speech for those who are fighting against things like dog-fighting.
Ohh, there was a big fight about some online “artist” years ago who drew very realistic child rape, and insisted it was legal as long as it was fictional characters. He supposedly had some law firm backing him up. Sicko and his followers advertised on web communities all over. He had “fiction” he wrote too. I know I wasn’t the only one who kept tracking him down and alerting his new webhost about what he put up. I also tracked down his real address and sent a note to the police department in his area about his online activities. Anyone thinking about it that much was bound to try it in real life sooner or later.
The law, if you look at it, is briefly worded and definitely does not CLEARLY define the difference between video taken for, let’s just say, evil purposes, and video taken to rile people up about what’s going on. Here is the law:
§ 48. Depiction of animal cruelty
(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.— In this section—
(1) the term “depiction of animal cruelty†means 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 under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term “State†means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.
FHOTD back in: By the way, what’s “possesses?” Like “possesses” in your computer’s cache? So if I was investigating some target of this blog online and I followed a trail of their phone number or e-mail or whatever to a web site that had this content, now I’m possessing it and I’m guilty because it is on my computer?
Sorry, I just think we need to go after the actual acts, not the filming of them — and a lot harder than we do now.
But the question here is not what we as a country should be doing… the question is can Congress do one or both?
Most criminal statutes are predicated on intent. If we can expect juries to determine whether a defendant intends to commit a crime in a conspiracy case, and that passes Constitutional muster, why can’t we ask them to determine whether a defendant intended to put the video into interstate commerce for commercial gain?
Also, video taken to rile people up about what’s going on probably falls under educational, political, or journalistic, depending on who is taking the video and how they intend to disseminate it. The exceptions were phrased a little ambiguously, but if they can cover protected speech we don’t have a Constitutional question until someone enforces the law to stifle actual protected speech.
I just don’t see a guy selling videos of his criminal behavior to other criminals to further their happy little criminal community as passing the balancing test.
Interesting drafting. It is arguably a strict liability law, with a handful of exceptions. That is, there is no intent element to it (you can ignore the “for commercial gain” part – that’s not a traditional intent formulation), except by negative inference. The only intent element needed – if one wanted to add something approaching the real thing – would be “with the intent to encourage or promote such acts.”
The concept of the addition of intent certainly does not cause me pause. Many of our laws are drafted in terms of intent – most of the non-traffic-related criminal laws have such an element, just for example. Because this was essentially a criminal statute, I would expect an intent element to it.
Skimming the syllabus, it didn’t appear that the strict liability nature of this statute was the Court’s principal quarrel with it, though.
Oh, and Cathy, the answer to your “possession” question, re: the computer cache, may be found here:
http://www.law.com/jsp/article.jsp?id=1202431023464
Wouldn’t you consider your blog posts be considered educational and/or political?
I would but would a court of law? That’s always the question. There’s kind of a huge debate going on right now about whether or not blogs are considered journalism and subject to the same ability to protect sources, etc.
I would like to believe that law enforcement agencies could tell the difference between a perp and a whistleblower. If not, you have a lot of friends who would care for your critters and contribute to your defense…
What “artistic value” is there in the depiction of intentional maiming, mutilating, torturing, wounding, killing a living animal?
So if I was investigating some target of this blog online and I followed a trail of their phone number or e-mail or whatever to a web site that had this content, now I’m possessing it and I’m guilty because it is on my computer?
Something similar to this has actually happened where an individual hacked another computer to surf child porn, then turned the computer owner in to authorities. It wasn’t the cache, they actually downloaded the pictures on the drive. It was discovered later by a computer expert, but not after causing the owner great embarrassment and huge financial losses.
What a scary, scary case.
I once worked at a place where someone hacked our web site and put movies on it to download illegally to the Internet. We had quite the conversation with our ISP – after, of course, I checked every work computer for those kind of files to make sure we genuinely weren’t guilty. We weren’t.
Fugs, I agree with you completely; however I must add that while it is legal to film/own pornography; it most certainly is not legal to even be in possession of child pornography. That being said, there ought to be some sort of happy medium with graphic depictions of animal cruelty…
Dollars to donuts we’ll see a law that does exactly the same thing, but makes sure that everyone understands that it won’t apply to hunting.
Here is a link for folks to check out. http://tinyurl.com/35mtq38 There is a link to a PDF near the top of the article as well as the article itself. I feel grossed out. It’s about the subject currently being discussed.
There was the case a few years ago of the parents who took pictures of his kids at bathtime and the clerk at WalMart where the camera card was read contacted authorities. The parents were arrested and they lost custody of their children for about 30 days while “investigations” were being done. They got the children back — no evidence of abuse was found — but the parents sued WalMart and, I believe, the state of Arizona. That is a scary proposition — you’re photographing your own children in the bathtub and you get arrested.
I also remember years ago a coffee table book about fairies — a series of photographs of young girls in sheer gowns or “drapes” and wearing “mayfly” type wings. Very “misty and soft focus” and nothing “naughty” visible — but someone could very easily misconstrue THAT as the photographer “getting off” by setting up, posing and then photographing images of young children.
It’s the intent thing again.
And “being in the area” can be costly, as well. Story going around my former town a few years ago about a woman living with a guy who took (apparently very obviously pornographic) photographs of her “special needs” infant granddaughter and had the film developed at a local drugstore. (He was also putting these photographs on the Internet). The guy asked his girlfriend’s father to pick up the photographs, but he refused. Long story short, the man picked up the photographs and at 6 the next morning the cops stormed the house. Broke into their bedroom, arrested the sister AND the guy. She was in jail (charged with being an accessory) and in order to get out of jail she was advised by her court-appointed attorney to please no contest, not realizing that she would have a felony on her record.
While I think the woman was guilty of nothing more than poor taste in boyfriends, she has been unable to get a job since and now, irony of ironies, has been awarded custody of the granddaughter because the child’s mother is, uh, “shiftless.” Actions should have very severe consequences. The law, however, is always open to interpretation, and the interpreter of the law, if labeled an “activist,” can parse down to the comma and sometimes come up with rather unique decisions.
That makes complete sense. I didn’t think of it that way.
You’re right, let’s focus on prosecuting the acts, not going down this slippery slope.
Come on, people. If your horse was lame, you’d call the vet out to see what the root of the problem was, right? You wouldn’t just give your horse some pain medication to mask the symptom and call it good would you?
Instead of going after the symptom (filming of animal cruelty) go after the root of the problem – the people PAYING to get their hands on these nasty videos. If there’s no market for them, I doubt people would spend time making them.
Absolutely an excellent point.
Well, there is no sanction for simply viewing the videos. You can’t very well forbid viewing them and allow people to sell or make them. The two go hand-and-hand logically.
OT – Bouvry is under investigation by the RCMP.
http://www.cbc.ca/canada/calgary/story/2010/04/22/calgary-horse-bouvry-slaughterhouse-rcmp-cruelty-inhumane.html
Fugs, thank you for posting this discussion. I was just lamenting yesterday that I had yet to find anyone having a decent or informative debate about this. Most people seem to read the headline then start screaming….
What I found interesting and have yet to see mentioned here is that Stevens actually was not the filmer of the fights, he just edited existing footage he found of dog fighting.
So, as for the argument that says “by getting this footage we can track down the perpetrators”… well maybe, maybe not. In his case not. He is the third or fourth removed guy down the line who is blatantly profiting off of these illegal acts. “Bum Fights” just came to mind, was anyone ever prosecuted in that debacle (though those guys were directly paying the bums to fight then filming it)?
Also, I read somewhere else (here and here) that the outdoor/hunting industries and/or the NRA exerted massive pressure to make sure that this got overturned… which, if that is the case, sounds fishily similar to some other Supreme Court cases that have recently had surprising results—mainly the one that removed restrictions/limits on Corporate campaign contributions.
I still dont fully understand the intricacies of constitutional law to really have an informed opinion on the verdict, but I find it fascinating and I appreciate the mature discussion taking place here. What a breath of fresh air…
I thought about this. Yeah, as written, this law might well have the unintended consequence of scaring people who find themselves in a position to capture abuse on film…like, you know, somebody who wanders into the warm up area at a show and sees a big name trainer beating the crap out of a horse. Anything on the internet is ‘interstate commerce’ automatically. Anything on a newspaper’s web site that charges for access or makes a lot of money from advertising could be construed as ‘for commercial gain’.
Do I think selling dog fighting videos for profit should be legal? Not really. But the law has to be a LOT more carefully worded than that.
“Do I think selling dog fighting videos for profit should be legal? Not really. But the law has to be a LOT more carefully worded than that.”
Exactly, and we should not settle for any less. Laws should be short, understandable by the people and unambiguous. If they are not well enough written, they should never be passed.
Haven’t h ad time to read ALL the comments, but…
“We already have laws against animal abuse. Enforcing the laws we’ve got will get us much further than making more laws. (This is also why I’m generally against gun control, but that’s a different kettle of fish.)”
YES.
With freedom comes RESPONSIBILITY. Say anything you want, but you’d better be ready for the consequences. And that’s a good thing, because ANY American has the right to “speak truth to power.” Which we do, all the time. Actually this idea came up in a faculty meeting the other day – about how it’s pretty easy to call the college President on the carpet for any old thing, yet it’s REALLY hard to say something critical to a junior colleague, or for students to call out their cheating peers. Very interesting phenomenon.
So, broadcast these horrible videos on YouTube all you want, because you’ve just made it easier for someone to come in and bust you for animal cruelty!!!!!
(A coworker pointed out the other day that extreme liberals and extreme conservatives have more in common than not, first and foremost a sense of CIVIC RESPONSIBILITY.)
Thank you for the NRA emphasis..talk about taking gun rights and hunting to the extreme. However I’m of the opinion that the meat industry also played a big part in this. Hard to figure out and verify.
I was disappointed on the decision based on the majority opinion, save for one point…the USC was poorly written and thereby made itself open to this kind of judicial review and decision.
Also, there seems to be a recognition to state’s rights, yet fails to acknowledge Federal oversight of internet, mail and out of state distribution. These are issues that are solely in the pervue of the Feds. Also, Alito’s opinion (and he AIN’T liberal in any stretch of the imagination) does specifically define the free speech issue and restraints of finding perpetrators within state jurisdiction. CJ Roberts’ opinion also bugged me re: commerce and finacial issues. But Ginsburg voted with them and I have to wonder what don’t I understand.
Animal Law Coalition has some great links and comments.
Completely agree with you. Especially on the “when in doubt, err on the side of free speech.” This is why I was so shocked you would like to see regulated horse breeding. Laws that seem good on the surface often have unintended consequences.
Well, free speech doesn’t produce mouths to feed. That’s where my belief in personal freedom ends – when we have a world full of starving horses.
Read TB Friends lately? Horrifying.
Ok completely OT but I received this email this morning. There is a GORGEOUS Paso mare in NJ that needs to have a home by saturday or she will be direct shipped to slaughter. Here is the email I received if any of you guys are near there and want a gorgeous gaited Paso (that is tall for her breed) PLEASE contact them. Photo is at the bottom.
Here is the email:
she has until Saturday Noon EST or direct to slaughter. Located at Camelot Auction House, 43 Brickyard Road, Cranbury, NJ. Proprietor is Frank: (609) 448-5225. 15H chestnut paso fino mare. 6 years. Was led thru but was supposed to be broke to ride. Very quiet. $450
Couple of old ads found about her.
Here is what her ad says:
She is the best gaited Paso Fino I ever rode. I promise you that! She is very much a one person horse and that makes her difficult to sell. She works hard, has no manner issues, but once she bonds to that one person she loves, the rest of the people in her life can take a hike. She is traffic safe, is not bothered by anything on the trail, is not particularly fond of working in the ring.
Says she is not registered.
Horse Skills
or Potential: Endurance Riding
Recipient Broodmare
Trail Riding:Competitive
Trail Riding:Recreational
Gaited
Horse was in PA.
Also found a Craigslist ad asking for $500 for her which said:
Great gait, 14.3 hands, no stall or handling manner issues. Does not like to be caught in the field but will come in eventually (grin). Green to ride and working well on trail, traffic safe, dog safe, looks at bicycles but does not spook, has a great largo on trail. Doesn’t do much ring work so don’t ask. Papers are lost, so don’t ask.
Picture at this link
http://i3.photobuck et.com/albums/ y65/jklawitter/ 636A.jpg
I am nowhere near New Jersey, but I love Paso Finos. She is indeed lovely.
Here is an unbroken pic link
http://i3.photobucket.com/albums/y65/jklawitter/636A.jpg
I hope she gets a good home, but I’m worried about the “one person horse” thing…
Did some googling and found a message board of people rallying to save horses from that auction.
http://forums.delphiforums.com/alexbrown/messages?msg=43726.18
This Paso mare has been saved, according to post #295.
(I am new to the ABR forum… How many of these people are faux rescuers/hoarders?! This whole thing looks kind of frightening to me…)
Sorry for the multiple posts…
Here is the correct URL for the post of the person who bought this mare:
http://forums.delphiforums.com/alexbrown/messages?msg=47586.295
Still trying to figure out this site, lol!
The “One person horse” thing is a Paso thing. I am working with a filly right now (ok shes a mare but we call her the filly lol) and she has taken 4-5 sessions and now she is “my horse” they CAN change people but they def. like their one person!
I am glad to see that someone has saved her. She was SO CUTE. If I wasnt 1. on the OPPOSITE side of the US and 2. Currently trying to work up being able to own a horse again
She was gorgeous though! I am hoping that it was real that someone saved her
And I apologize for the ramblings. It is currently 12 am and I am in a hotel room with 4 highschool girls on a 2 days trip
My brain is fried already!
Hmm, now that I think about it, my mom’s Paso mare is REALLY partial to my mom… She’s a weird mare anyway though.
FYI, looks like they are already pushing through a revised version of the legislation:
http://latimesblogs.latimes.com/unleashed/2010/04/animal-cruelty-videos-law-supreme.html
Right on fugly. Sometimes you have to accept evil things to protect freedom of speech, just how it is. The answer here is definitely to enforce cruelty laws more stringently.