Free Speech and Killing Kittens

Here’s a provocative post from Stanley Fish:

To anyone who has been following First Amendment jurisprudence in the past 40 or 50 years, the recent Supreme Court decision (United States v. Stevens, April 20) striking down a statute criminalizing the production and sale of videos depicting animal cruelty in a manner intended to satisfy a particular “sexual fetish” will come as no surprise.
The proverbial ordinary citizen, however, may be surprised to learn that, according to Chief Justice John Roberts’ majority opinion, the First Amendment must be read to allow the production and dissemination of so called “crush videos,” videos (and I quote from Roberts’ opinion) that “feature the intentional torture and killing of helpless animals” often by women wearing high-heeled “spike” shoes who slowly “crush animals to death” while talking to them in “a kind of dominatrix patter” as they scream and squeal “in great pain.” How has it come to this?

And here’s his conclusion, which is pretty critical of free speech absolutists:

But Roberts isn’t having any. He simply invokes the post-New York Times v. Sullivan mantra and flatly rejects any “balancing of relative social costs and benefits “when it comes to speech. “The First Amendment,” he declares, “reflects a judgment by the American people that the benefits of its restrictions . . . outweigh the costs,” a judgment that he insists can not be revised “simply on the basis that some speech is not worth it.” In short, the balancing Roberts rejects has already occurred in the empyrean of First Amendment theory and the conclusion, given in advance, is that, aside from a direct incitement to violence or an act of treason, no expressive activity can be worthless enough to forfeit its constitutional protection. So much for the kittens.

One often-heard objection to religion is that horrible acts are done in its name. It is an irony of history that the First Amendment, opposed by Justice Jackson in a famous passage to the establishment of any orthodoxy, has itself become an orthodoxy, a religion, a veritable deity, and one that demands an absolute fidelity.

So-called “crush videos” are an easy target, so let’s try something more ambiguous. I think South Park is crude and humorless. From what I’ve read, the much-discussed Mohammed caricature episode offers precious little in the way of valuable social commentary on Islam or anything else. Others may disagree. So you’ll understand my reluctance to allow extremely subjective judgments about the value of individual speech acts to dictate the scope of the First Amendment .  Legal protections sometimes sanction unintended – and distasteful – activities on the margins, but this doesn’t strike me as a reason to radically alter our approach to public speech.

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52 thoughts on “Free Speech and Killing Kittens

  1. The essential question for me is whether the animal crushing is still illegal while filming it, and disseminating it, is not. That’s my understanding of the decision but I’m happy to be educated. That’s my preferred scenario: that the animal crushing is illegal but the filming isn’t, although the person filming, if they knew about the crime of animal cruelty and helped set it up, should be subjected to being charged as an accessory. (In other words, punishing the filmer for participating in the crushing, not for the filming.)

    I’m one of the free speech absolutists Fish decries, but crushing an animal is not free speech, anymore than punching someone in the face is. Making a cartoon parodying Mohamed is not physical violence, and without the power to offend, freedom of expression loses all meaning.

    Incidentally, if I caught someone crushing an animal, I would punch them in the face.

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    • @Freddie, Just b/c no one confirnmed it yet, I’ll say that I do believe the decision draws exactly this distinction. The thing portrayed can be illegal (probably is – that’s not up to the Court), whilst the portrayal itself must remain legal.

      I personally am not a free-speech absolutist at all. I was, or thought I was, before I took a course called “The First Amendment” as an undergrad in which I read Fish’s There’s No Such Thing as Free Speech, which in part changed my view. I recommend it universally, though by no means claim it will or should be universally persuasive. But it was persuasive in some ways to me when I read it. (I can’t even say it would be today; that was pretty long ago now.)

      That said (positing my non-absolutism), even still I’d want to say that merely because a case is sensationalistic, as this one is, that doesn’t automatically make it a marginal case on the law. Compelling governmental interest and so forth. There has to be a good reason to limit speech — we can argue over what that might be or if that legitimate limits in such cases should even be hypothetically conceded — and I just don’t see one here. I suppose that in some way the popularity of the videos could be argued to promote these vile acts. But their prohibition would likely make them no less in demand. And I’m not sure that rises to a compelling government interest in any case.

      All THAT said, I’m not sure I’d want to grant that if this had gone the other way, the result would have “radically alter[ed] our approach to public speech.” I might find th stakes here not high enough to constitute a compelling government interest, but I very well might if it were humans being killed in the videos. The principle would be exactly the same, so would a result allowing the ban be a “radical” departure from our current approach to public speech? Or would it merely be that a critical line had been crossed? Much thinking, debating, and reading (Fish among others) on this type of question has gone into my coming to see that I am, on free speech as on nearly all other things, most definitely not an absolutist in any sense.

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  2. I suppose one could make an analogy with using medical data obtained from experiments performed by Nazis on their prisoners—while the original act was heinous, once it’s been completed, use of certain consequences of that act should be permitted. Except that the prisoner experiments no longer go on, so use of the data does not encourage further experimentation, whereas crush video production is ongoing, and very definitely does encourage further acts of murder. Seems to me that when the link between performing an illegal act and making use of the consequences of that act is so strong, a good case can be made for banning the latter. Can’t it be shown to a reasonable degree of satisfaction that anyone who makes such a video will have allowed an illegal act to be performed?

    “The First Amendment,” he declares, “reflects a judgment by the American people that the benefits of its restrictions . . . outweigh the costs,”

    I don’t understand this passage. What are restrictions of the First Amendment, and what are their benefits? Maybe what is meant is “the benefit of removing its restrictions”, where “its” refers to free speech?

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  3. For the sake of argument, let’s take this the next step up the ladder; should a human crush film enjoy the same freedom of production and distribution as an animal one (leaving aside that you would obviously want to charge the producers for murder)? If not, why not?

    I find the idea of showing an animal snuff film for any sort of gratification deeply repugnant, but for the greater good of protecting freedom of expression, I could see an argument for allowing the distribution, if not the act itself. I’m not sure I could see the same if it involved people.

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  4. I understand the importance of making a distinction between act and depiction, and I don’t have a problem with it. But, if we accept that argument, then why is child pornography prohibited? It’s perfectly analogous: the act itself is heinous and illegal, and if the videos, etc. were prohibited then at least the particular instance of it that is being videotaped would be prevented.

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    • @golikewater, there are crazy libertarians who argue this. The argument is that the tape contains no harm. Go after the guy holding the camera and the actor(s) in the movie but the tape itself is just so many 1s and 0s.

      Additionally, there are arguments about photoshopped pictures, jpegs (and movies) made from programs like Poser, and drawn/written stuff.

      Rufus recently pointed out that Japan is thinking about passing a law making certain kinds of comic books (the ones that touched on this very subject) illegal.

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    • @golikewater, The legal theory (which I believe is correct) is that depictions and distribution constitute an ongoing victimization of the child. They perpetuate the crime committed against him/her.

      Animals, so far as we know, don’t suffer any harm from having depictions of their deaths being distributed.

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    • @golikewater, There was a case in fact where someone was prosecuted for making and distributing “soft” child pornography, which just consisted of suggestively framed shots of clothed children (who I think were unaware of the filming, although I’m a bit hazy on the details).

      I believe the court ruled that this still counted as child pornography under the relevant law and was not protected speech, so its filming and distribution was a crime even though no crime took place in its creation. Not consistent with the theory of this case, as far as I can see.

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  5. Roberts’ opinion emphatically does not say that “the First Amendment must be read to allow the production and dissemination of so called ‘crush videos.'” He explicitly says that a law that bans crush videos might be allowed under the First Amendment, but the law this case was about bans other things besides crush videos. Here’s the language, at the very end of the majority opinion:

    However “growing” and “lucrative” the markets for crush videos and dogfighting depictions might be, they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of §48. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional.

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    • @Patrick, I think that’s exactly right. Here’s the relevant excerpt from the Post’s coverage:

      “Roberts’ opinion said the court was not passing judgment about whether a narrower statute limited just to crush videos and “other depictions of extreme animal cruelty” might be constitutional.

      But the court said the legislation passed by Congress was far too broad. Anyone who “creates, sells or possesses a depiction of animal cruelty” for commercial gain can be imprisoned for up to five years. A depiction of cruelty was defined as one in which “a living animal is intentionally maimed, mutilated, tortured, wounded or killed.”

      Roberts wrote that the definition was so loose that it could include all depictions of wounding or killing animals, even hunting videos or magazines. He said the law’s exemption for works of “serious religious, political, scientific, educational, journalistic, historical or artistic value” was not enough protection, and the court was not reassured by the government’s argument that prosecutions were rare.

      “We would not uphold an unconstitutional statute merely because the government promised to use it responsibly,” he wrote.”

      http://www.washingtonpost.com/wp-dyn/content/article/2010/04/20/AR2010042001980.html

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      • @Will,

        I’ll agree with that in principle, but that seems to be a bad generalization in and of itself.

        Absolute (or nearly absolute) quantification comes with its own drawbacks: if you require the law to be written in such a way that interpretation of it is extremely limited, then the obvious consequence is the law is going to be verbose, difficult to parse, and full of loopholes that can be dodged by anyone who wants to game the system.

        The flip side, of course, is that if you make a law too ambiguous in wording, the interpretation of the law is going to be overly subjected to the whims of cultural norms.

        Make animal crush videos illegal by making the law “sufficiently specific”, you’re probably not making “animal crush videos” illegal at all. You’re making the recording of animal crush video on certain types of media or using certain types of specific technology illegal. So three years from now, there’s a new media format or a new codec and you have to start over.

        You see a general version of this problem in telecommunications law; most of the existing law was written to refer to circuit-switched audio communications, and many, many legal challenges are mounted simply on the basis that existing telco law doesn’t apply to IP traffic.

        I’m not certain that accepting a hypothetical misuse of a law as a reason to throw it out is good default judiciary policy. Sure, you can argue that hunting videos could be prosecuted under such a law, but before you regard that as an exception scenario, perhaps we ought to see if it ever actually occurs? I don’t know that this is a substantive objection over prosecuting a nimrod now and today, even under a poorly written bit of legislation.

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        • @Pat Cahalan, That’s an interesting objection. But if I was to weigh the harms of, say, prosecuting protected speech versus the hypothetical proliferation of “crush videos” at some point in the future, I think I’d err towards protecting speech now. I also think you have to take a look at how Roberts would implement a narrower ban on “crush videos” before arguing that enforcement would be rendered obsolete within a few years.

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          • @Will,

            That’s a fair rejoinder. I wasn’t necessarily disagreeing with this particular instance of the argument, just pointing out that the Roberts quote doesn’t generalize very well.

            Unfortunately, my impression is that SCOTUS usually says, “We don’t like this,” not “If you did this this particular way, we’d say its okay”, so I’m not really sure what legislative target people ought to be aiming at.

            It also seems odd to accept as a principle, “We are challenging this law, which affects our client who is clearly engaged in precisely the activity that the law was obviously created to limit, under the grounds that somebody sometime somewhere might be unconstitutionally limited by this law…” *and* having the court agree with that line of reasoning with the caveat that it’s *still possible* to outlaw that which the particular client is accused of doing.

            It seems to be bad audit practice, which is essentially what SCOTUS does. But then, as much as I know about audit processes, I’m no legal expert ;)

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    • @Patrick,

      The issue I have is that if you engage in the canons of statutory construction, how would somebody be able to make this claim knowing that every state animal cruelty state (or just about) has explicit carve outs for hunting. It may be some poor legislative drafting but to assume that a law would allow for the prosecution of an activity that has such widespread acceptance and, per the law of the land in the states, is legal, is a stretch to me.

      I think there’s a canon of construction that has to do with ignoring these sorts of conclusions but I’d have to check on that.

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      • @Dave, there’s a canon of construction for anything you might want to argue. I’m not engaging with the correctness of Roberts’ opinion, just pointing out that Fish grossly mischaracterized it in his lede in order to get to the point he wanted to make.

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  6. Stanley Fish suffers from the belief that when the censors finally arrive, they will all be little copies of Stanley Fish, with precisely the same tastes and values about everything. He doesn’t even appear to consider the possibility that something dear to him might get censored.

    And, of course, the public will adopt every last one of the wisely chosen tastes and values of the good Prof. Fish once they’re exposed only to the proper kinds of information.

    Do we find the “rhetoric of regret” in the Flynt/Falwell case? Of course! I find both of them regrettable. But I would find a censoring government even more regrettable — because it would be more dangerous. If you want to see real regret, start censoring.

    Also, and I can’t really formulate this last point into a direct criticism, but… I find it in poor taste that so many people feel that they must — right at this particular moment — declare that South Park isn’t funny.

    I stopped watching South Park shortly before my daughter was born, and for that very reason. But unless it’s changed a lot in the last few months, I’m pretty sure I’d still find it funny as all hell. Some things, I don’t actually regret.

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      • @Freddie, you should always put a great deal of emphasis on your own personal aesthetics in a discussion of human rights.

        What is your opinion on Primus? Are they just a mediocre band with a bassist who has achieved an admirable .2 on the Bootsy scale?

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        • @Jaybird, you mean like you are putting a lot of emphasis, in this discussion of human rights, on your personal ethic of a combined distaste for/pathological obsession with me?

          The simple truth is, Jay, that is so often the case, you wouldn’t have had anything to say about this comment at all had it not come from me. So why don’t you go put your head down in the corner for awhile?

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          • @Freddie, I’ll note that you didn’t answer a direct question.

            In any case, I reckon we hang with different circles. I have a huge number of library-types in my life. One of the things I admire most about them is that they are absolutely freakin’ *HUMORLESS* on the topic of Freedom of Speech/Freedom of the Press/Censorship. I mean, dude. These people are *AWESOME*.

            To bring Naziism into it, a discussion of whether Mein Kampf ought to be banned is likely to bring up a discussion of the nazis who want to ban books rather than the Nazis who showed up after this particular book was written. There is never a “I just want everyone to understand that I do not condone the contents of this book” preamble to the discussion. It’s not required… because we know that, for any value X, the library folks will defend the right of Book X to be published, distributed, kept in the appropriate part of the library, and read. Mein Kampf is Heather Has Two Mommies is Madonna’s book whatever it was called is The Joy Of Cooking is The Adventures of Huckleberry Finn.

            I dig library types.

            I’d suggest you hang out with them more, actually.

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      • @Freddie,

        I’m struggling to pinpoint what I think. I haven’t succeeded yet.

        Now, we’d all agree that if we were talking about a woman who lost her job because she wouldn’t wear an Islamic headscarf, and if I said, “well, she was overweight anyway,” that would be both totally irrelevant and in very bad taste. Why would I bother bringing it up at all?

        But I don’t feel wholly comfortable with that analogy, however, because the other analogy that comes to my mind is simply the principle mis-attributed to Voltaire — that I may disagree with what you have to say, but I’ll defend your right to say it.

        I’m still trying to figure out which rule controls here. It’s not made easier by the fact that I do sincerely enjoy South Park.

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        • @Jason Kuznicki, I think the point for me is to completely separate the right to speech from my own position on the value of that speech. Obviously, South Park is a very different animal from Nazism. But when I argue for the right of Nazis to march, a big part of the point is separating entirely that support from whatever my feelings are with Nazism. That’s a principle I’d like to apply to all of these issues, even if I really like something being censored. The essential political message is that personal appreciation and defense of rights to expression are just entirely different entities.

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    • @Jason Kuznicki,

      > Stanley Fish suffers from the belief that
      > when the censors finally arrive, they will
      > all be little copies of Stanley Fish, with
      > precisely the same tastes and values about
      > everything. He doesn’t even appear to
      > consider the possibility that something
      > dear to him might get censored.

      I don’t know that this is a fair characterization.

      On a higher level, I don’t know that this is germane to the present case. The Supreme Court isn’t hearing a case about someone being prevented from lobbying for animal crush video production, of parades in support of animal crush fetishists.

      What is “speech”, in this context?

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  7. You realize you could prosecute Disney for distributing Bambi as that law was written? It makes me wonder if the people who voted for and signed maybe weren’t even serious about crafting it and just out-jousted each other who could make the meanest anti-crush video bill.

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  8. Over at my own blog, I went into more detail about this, but I think Roberts gets the parallels with child pornography totally wrong. He seems to argue that the producers of child pornography are doing so primarily for the market in the material, whereas the abusers of animals are doing so as an end unto itself. I think this is, if anything, the exact opposite of the reality. I suspect that people who participate in the production of child pornography are doing so primarily for their own gratification (with the production of the pornography as a secondary gain), while producers of crush videos participate only to make the videos for the “specialized” audience.

    It’s rare that I agree with Sam Alito, but that’s where I find myself.

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  9. One observation I’d like to make:

    This law that was overturned… it hadn’t been used to prosecute a single “crush” video, had it? It was only used to prosecute something else entirely.

    Is there a single kitten whose live has been saved because of this law?

    Is there a single mouse who will never have to have the last thing he sees be a pair of Gianna Melianis because of this law?

    Has this law, in practice, ever done a damn lick of good?

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      • @Gorgias, really? That strikes me as odd. “Here, let’s make a movie that will cost pennies, sell it multiple times for anywhere between $20 and $100, have no faces in the video, have no identifying information in the video…”

        And suddenly people stop making them, even overseas, because of this law?

        A law that had never, ever been used to prosecute someone/anyone involved in making such films?

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    • @Jaybird,

      You make a darn good point. This particular law is apparently fatally flawed. The question now is once we accept that creating crush films is wrong how do we stop it.

      Is a legal remedy possible? Would it be effective? What terrible side-effects would it have?

      I have no idea.

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