Overturning USA v Stevens and 18 U.S.C. § 48

In reviewing the ruling in United States of America v. Robert J. Stevens, I have decided to overturn the law passed by Congress. The statute in question, 18 U.S.C. § 48 states: (a) 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; and (b) This restriction does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. The case of USA v Stevens deals with the issue of the production and sale of dog-fighting videos. Stevens himself did not participate in the facilitation of the dog fights in his videos, but simply compiled footage of historical dogfights that took place both in the United States, where dogfighting is illegal and in Japan, where it is not.

Originally, 18 U.S.C. § 48 was established to halt the phenomena known as crush videos. Crush videos became more prevalent with the growth of the internet and congress wanted to criminalize the sale and possession of such videos in hopes of eradicating the market. However, in formulating the statute targeting crush videos, Congress created a law that is overly broad and has created an entirely new category of unprotected speech. More than two decades after the last category of unprotected speech was declared, Congress has established a new one. This new category joins the likes of fighting words (Chaplinsky v New Hampshire), speech that imminently incites illegal activity (Brandenburg v Ohio) and child pornography restrictions (NY v Ferber). In upholding this new category of unprotected speech, the government claims that they are directly impeding the actual act of animal cruelty by criminalizing its depiction. In seeking to refute their claim that the law upheld in USA v Stevens is constitutional, we will look at philosophical and doctrinal issues at hand when banning depictions of animal cruelty, as well as the level of harm that should be applied and the level of scrutiny required to be met by the government.

In defense of 18 U.S.C. § 48, the court employs the help of the landmark case, Chaplinsky v New Hampshire in which two categories of speech were established: “ (1) That which has social value as a step to truth; and (2) That which has no social value as a step to truth.” (p 170, Freedom of Speech in the Unites States). This ruling is directly taken from the philosophy of Zechariah Chafee and is later described as the two-level system of free speech that distinguishes between worthwhile and worthless expression. Unlike Congress in this case, I would not employ the help of Chafee. Rather, I would turn to Edwin Baker and his “Liberty Theory.” The Liberty theory of the freedom of expression as described by Baker argues for the importance of self-realization and self-determination (p441). This notion of self-determination I think is very important in the case of animal cruelty. In applying Baker’s theory I do not attempt to defend the activity of being cruel to animals, and neither would Baker (he does not condone violent expression) but the freedom to trade and possess depictions of it is not, in my mind, directly perpetuating the act nor should it be subject to government restriction. It should not be left up to the government to define worthwhile and worthless speech, but it should be at the liberty of each individual to decide that for him or herself insomuch as it does not incite harm to others.

In defense of their ruling in the case of depictions of animal cruelty, Congress grounds their claims in New York v Ferber, the case ruling which made it illegal to create, sell and possess child pornography. In analyzing the connections between animal cruelty and child pornography, it is clear that the ruling in Ferber do not hold relevance in this new statute. The first argument is that like the issue of child pornography, the prevention of animal cruelty is a compelling government interest and therefore would survive strict scrutiny. However, as argued by the dissenters in USA v Stevens, “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.” There have already been laws enacted in all 50 states that target animal cruelty and it is not clear that criminalizing depictions of animal cruelty would eradicate the actual crime in the same way that Ferber prevents the exploitation and harm done to children from child pornography.

Secondly, although it is clear that animals should be treated kindly, it is extremely unlikely that they suffer continuously from having the disputed images floating around. Children, on the other hand can and do suffer continuously from depictions of child pornography.

Thirdly, there is no evidence supporting the argument that criminalizing the depiction of animal cruelty will decrease “production” and ultimately halt the occurrence of cruelty to animals. Many people who commit such crimes do not do so to make money by selling depictions of their actions. Cruelty to animals is something that will continue regardless and depictions of such activity is more commonly repulsive to its viewers than a motive for future infringements of the law. In other words, I don’t think the simple viewing of animal cruelty does harm, it is the action itself, which is already illegal.

Finally, the exceptions clause is extremely contradictory to the law itself. If the purpose of criminalizing depictions of animal cruelty is truly seeking to stop the actual action of animal cruelty, then why is it okay to depict this cruelty in some cases? Ferber does not include a SLAPS clause, so if these two cases are so similar, then why should the restrictions on animal cruelty include one? This inclusion of a SLAPS clause is similar to the precedent established in Miller v California and has nothing to do with Ferber, which Congress claims as the basis of this new category of unprotected speech.

A side-note I would like Congress to consider is the relation between animal cruelty and violence on television. One of the arguments given by the court is that depictions of animal cruelty inspire others to act in the same way and that violence to animals ignites the tendency to commit violent crimes against humans. However, if that is the case, why would it be any more acceptable to depict violence among humans on television – wouldn’t that inspire illegal violent activity in the same way?

In seeking to restrict speech pertaining to animal cruelty, I believe the government should have to meet strict scrutiny. Because I do not believe the government has an actual compelling interest in restricting the depiction of animal cruelty, I do not think they will meet this burden of proof. Their interest is not compelling because in restricting this kind of speech, I do not believe acts of animal cruelty will shrink in number.

In the end, I would overturn 18 U.S.C. § 48 on the terms that it does not concern a compelling government interest in the same way that issues of child pornography do. Also, if we look at the defense arguments, we see that the law itself is overly broad in that it could criminalize the depiction of things like pictures taken while hunting animals. The law is not refined in its original efforts to solely dry up the market for crush videos. If the government wanted to stop these specific videos, why not specifically say so? Instead, they have created an entirely new, overbroad category of unprotected speech that threatens the liberty of individuals who have committed no crime themselves, while doing nothing to prevent the actual illegal act of animal cruelty. In altering this statute, I would employ the harm theory of incitement made precedent in Brandenburg v Ohio. Only if the speech in question imminently and immediately causes harm to individuals (humans or animals) should it be restricted by the government.