Dog Gone! U.S. v. Stevens

In an 8 to 1 decision, the U.S. Supreme Court today struck down a federal statute (18 U.S.C. § 48) that criminalizes the sale or possession of depictions of animal cruelty. The statute was intended to prevent someone from profiting indirectly from activities that would otherwise be illegal.

Dog fighting seems to have been the primary focus of the legislation. This activity is illegal in every state. Organizing dog fights or dog fighting rings is a felony. See Michael Vick. Presumably, if someone published a magazine with photos of dog fights, or sold videos or even audio recordings of the same, that would create an additional financial incentive to keep the fights going.

First Amendment Free Speech protection is subject to certain exceptions under the Court's jurisprudence. Fight words, defamation, obscenity, sedition, are among them. As I gather from a quick review of the decision, the Court understood that Congress wanted to carve out another exception, this one to cover depictions of animal cruelty. The Court declined to do so.

The Court decided rightly. Suppose an animal rights group sold a video depicting animals subject to cruelty in a number of industries, including the beef industry and dog fighting. It looks as though that sale could be criminal under this statute.   Likewise this blog with the attached photo might be liable. 

The government insisted, reasonably enough, that prosecutors would not act beyond the intentions of the law; but the Court replied, correctly, that First Amendment rights are not to be dependent on a presumption of prosecutorial responsibility.

The Government seemed to want to use a "balancing test." The Court properly rejected that idea. From the Syllabus:

The Government's proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment's free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government out-weigh the costs.

That said, the decision is not without problems. I cannot see how this case differs from New York v. Ferber, where a law criminalizing possession or sale of child pornography was upheld. The rationale for the laws looks the same, except in so far as we value children more than dogs.

Critics of Ferber thought that the statute might criminalize many innocent depictions of naked children, say, in baby product catalogs. I have not heard of any such cases, so maybe prosecutorial responsibility is more reliable than the Court is willing to acknowledge.

Perhaps the moral of the story is this: we care a lot about free speech, and only limit it when we really, really want to. Those who traffic in child porn should be thrown in the slammer. Given that, the role of the Court is to keep such exceptions to a bare minimum. The Court has done that in U.S. v. Stevens.

Comments

[Guard]

KB, this subject you keep bringing up is a result of bad parenting through the decades. Responsibility has broken down across a mass section of our society and that is why we are witnessing these problems that abnoxiously flood the news scene today. You posted a picture of two pitbulls violently fighting to the death which acurately depicts American Society today: obsessed with violence and sexual perversion and it is everywhere and exists on both sides of the political spectrum (Republican and Democrat, Libral and Conservative. Today, you see the mass promotion of this stuff from a majority of a generation that was not brought up with much "proper" discipline. So, it is not a partisan issue...it is a societal issue and blaming it on one political party or ideological persuasion continues to prove counterproductive and does not truly address the problem: of raising the next generation of children with "proper" discipline and moral values. As Stan asks in another post: "What should society do with them [lazy people that don't work]?" It's too late I'm afraid my friend. Think of the analogy this way: If you don't "properly" discipline your children, teaching them to be responsible before they hit puberty, they have become a lost cause as my mom use to say. We see it everyday. Parents who let their children run wild until age 13 and then try to lay down the gauntlet with them find them impossible to discipline. The same with society: we are too late. The masses have not brought up the children with much "proper" discipline" and as the Offspring song title acurately says: "The Kids Aren't Alright."

[Stan Gibilisco]

In my opinion, Guard is correct.

When I was in college, one of my radical friends came up with a "Theory of Social Entropy." Generally, he believed that all societies decay, sort of like the "heat death of the universe" among human bodies, minds and spirits.

A gloomy picture, this, but one predicted by diverse prophets, and one playing out before us all over the world today.

For some, it's too late. They're gone. The taxpayers will simply end up subsidizing them, assuming that our nation doesn't take a right turn so violent that they're simply allowed to starve on the streets.

The question is, "Can we turn this trend around?" I don't know. I can only attempt to hold to high standards myself, and pray for the strength to do it in the face of so much pressure to the contrary.

[Guard]

The problem is that all the answers do not belong to one ideological side. Both sides have become so blinded and polarized that they believe they have all the answers. The Right is not 100% correct and the Left is not either. We have lost commonality between the sides and that is also leading to the chaos and our eventual downfall.

[William]

Well Guard, I largely agree with you that, as a society we've become sharply divided on fundamental issues, to a point I'm afraid that as a nation we no longer agree on what our we are to be. We can't agree on what "proper" discipline is, let alone practice it.

I'll argue that as our nation turned from God, found new rights emanating from penumbras in our Constitution and empowered Government to not only protect our rights but to define and grant them to us, we set the path we're on today.

I think we are at a critical point in which we either take action to determine our national future, or simply allow the future to decide it for us.

We are on an unsustainable path and that which is unsustainable will stop. Will we "put on the brakes", make a change in direction or "freeze at the wheel"?

[Guard]

Will, what is meant to be is meant to be.