Animal Rights--not just for humans.

There is no denying the deplorable and patently offensive nature of videos depicting animal cruelty. Most specifically “crush” films—video depicting the act of stepping on small animals in order to satisfy sexual fetish is one of the more disgusting things and unnecessary things included in our society.

Framing these videos and other depictions of animal cruelty within the first amendment is an interesting concept. While I have generally been someone who has upheld first amendment rights fairly liberally (see Al Timimi), the 1999 law making it illegal to sell crush videos for profit seems on target. The argument of free-speech rights and expression falls flat in this case, citing the lack of important and meaningful content entered into society's intellectual conversation. These videos, aside from being a source of sexual pleasure for a small minority of people, have no place in society when it comes to the expression of ideas.

Philosophically speaking, videos of blatant animal cruelty hold little to no foundation. Many of the freedom of expression philosophers, evaluating the nature of “crush” videos, would more than likely question such first amendment rights. Both Milton and Mill may argue that animal cruelty videos add nothing to the marketplace of ideas and in no way intends to find and test truth. Furthermore, these videos hold no importance as it pertains to political speech. If anything, Chafee would argue that animal cruelty video holds no social interest and therefore garners little first amendment protection. Based on Chafee’s philosophical approach material is judged based on whether or not it is in the social interest or not. In terms of animal cruelty, this is a no-brainer. There is absolutely no social substance to these “crushing” videos.

The 1998 Sec. 48 public law clearly states that “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.” The language is clear. It goes on to say in the subsection that this “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The language is clear with its target and intent. As far as I'm concerned, the law is not overly broad nor is it ambiguous in any way. It is clear that videos which are sold and document graphic behavior against animals is penalty under the law. Stevens’ video, while not sexual, does depict animal cruelty to a degree where animals are in inevitable danger of death. There is no political or historical value to the video and instead serves as a tool of entertainment.

As far as levels of scrutiny are concerned, with videos of animal cruelty it is reasonable to state that there needs to be a high level of scrutiny. This is to say that the government must demand of the speaker why they should be allowed to depict these acts of violence. This is a radical switch in opinion for me and indicates the case by case basis of determining the scrutiny level on a specific case. Rather than the defense having to prove the social worth of these animal cruelty films, I place the burden on the speaker who has deemed it socially acceptable. Their reasoning must be significant enough to warrant protection. It comes down to harm—would we accept a low level of scrutiny for a speaker who depicts the death of a human being? In many ways the government must be required to present little to no reasoning for blocking of such messages. Chafee would argue that because the speech serves no social interest and no search for truth, it deserves less protection. More than likely Chafee would agree that videos depicting animal cruelty are clearly indecent. The crush videos do nothing to promote truth or morality in society. Chaplinsky v New Hampshire cements Chafee’s views in terms of social interest and morality. The case states “that such utterances are no essential part of any exposition of ideas, and are such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Chaplinsky).In terms of doctrinal analysis, it may even be necessary to equate issues of animal cruelty to that of child pornography. To a large degree, just like child pornography, the subject of an animal-based video has little control over his/her intellectual and emotional agency. Harm is induced by the creator for a specific purpose without the consent of the subject.

In the Child Pornography Prevention Act of 1996 it is made clear that material where “the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct” is illegal. How does this differ at all from the depiction of brutal animal cruelty? While society values the lives of humans to a more severe degree, animals are living beings who need to be afforded similar rights.

One of the supreme court justices, sarcastically, brings up the question of having a television, pay-per-view program depicting the killing of humans. While a radical example, I think it does yield an interesting conversation concerning the rights of human’s vs. animals and what would be considered unprotected video. It would be safe to assume that such a program would not be protected and would immediately be forced off the air without any level of scrutiny. Some may argue that similarly, given my argument, images of war and car crashes would not be protected nor images of aborted babies. This is not true. All of these things, including war, are not necessarily by choice. There are other circumstances which have led up to these things happening and—while they may not be tasteful to some people—are protected speech in that they represent a reality. What is a choice is making the decision to either harm an animal or not. These crush videos are not by accident, they are meant to inflict harm on another living thing.

The harm principle does not apply to this topic. According to the harm theory, certain speech is protected if it does not cause harm to any specific person or object (bad tendency). We know this not to be the case when it comes to cases of dog fighting and this horrendous “crush” fetish. Lives are being destroyed and the speaker deserves to take full responsibility. The 1999 law by Congress is both strong and narrow enough to make it clear that any depiction of animal cruelty is strictly prohibited and is not protected under the first amendment because it holds no social value. Even if the material is used to inform of abuses there are ways around showing abusive and demeaning footage of animal cruelty. It is important to recognize that animal cruelty is illegal in all 50 states. It would make sense then that video footage of animal cruelty is equally illegal.