Criminal Records

The federal ban on depictions of animal cruelty violates the right to free speech.

Jacob Sullum | September 30, 2009

Does Conan the Barbarian have serious artistic value? That's one of the intriguing questions raised by a case the U.S. Supreme Court will hear next Tuesday.

Because Conan includes footage of horses tripped by wires, it seems to be covered by a federal ban on depictions of animal cruelty. If so, Amazon is committing a felony by selling it, unless it could convince a jury that the 1982 epic—in which a bare-chested, codpiece-wearing future governor of California declares that the best thing in life is "to crush your enemies, see them driven before you, and hear the lamentation of their women"—has "serious religious, political, scientific, educational, journalistic, historical, or artistic value."

By inviting jurors to be film critics, with the consequences of a bad review including up to five years in federal prison, Congress has turned the First Amendment on its head. That lamentation you hear is the dismayed cry of the Framers at the blitheness with which the people's representatives seek to crush expression that offends them and drive politically incorrect thoughts from the realm of tolerable discourse.

Back in 1999, outraged by videos aimed at people who get a sexual thrill from watching women stomp on little animals, Congress made it a felony to create, sell, or possess with intent to distribute a "depiction of animal cruelty." It defined the forbidden material as any visual or audio record of conduct that hurts an animal when the conduct is prohibited by federal law or the law of the state where the depiction is created, sold, or possessed.

Although President Clinton said when he signed the law that it should be used to prosecute people only for material akin to the "crush videos" that provoked it, all three cases brought so far have involved footage of dog fights. In the case before the Supreme Court, Robert Stevens, a Virginia pit bull enthusiast, received a three-year prison sentence for selling two videos showing pit bulls fighting and one showing them hunting wild boar.

Stevens' conviction demonstrates how the ban on depictions of animal cruelty can send people to prison based on jurors' subjective reactions to a film. Stevens says he does not endorse dog fighting but used footage of it—shot in Japan, where the sport is legal, and in the United States more than three decades ago—to illuminate the history and behavior of pit bulls. Defense experts testified that the videos, which are far tamer than images routinely used by animal rights activists to rally support for their cause, have substantial educational, historical, and scientific value.

The prosecution's experts disagreed, quibbling over matters such as the length of certain scenes and Stevens' decision to illustrate poor training by showing a dog attacking a domestic pig. In 2006 the U.S. Court of Appeals for the 3rd Circuit overturned Stevens' conviction, ruling that Congress had violated the First Amendment by making a man's liberty hinge on such unpredictable, arbitrary judgments about the value of his speech.

The appeals court noted that "the statute potentially covers a great deal of constitutionally protected speech," including images of bullfighting in Spain (since the recorded conduct need only be illegal where it is possessed or sold) and of hunting or fishing out of season. Similarly, in a brief asking the Supreme Court to uphold the 3rd Circuit's ruling, several journalism organizations that worry about the law's impact on coverage of animal-related issues say it "appears to be a felony for anyone in Oregon to possess depictions of legal, licensed crossbow hunting in Washington." Wrinkles like that could imperil the entire genre of hunting and fishing videos.

Solicitor General Elena Kagan suggests the Justice Department will avoid such bizarre results by applying the statute judiciously. But Stevens' prosecution, which goes beyond the avowed intent of Congress, shows the department cannot be trusted to do so. If the First Amendment means anything, it means freedom of speech should not depend on prosecutorial discretion.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. 

© Copyright 2009 by Creators Syndicate Inc.

Comments

@|9.30.09 @ 7:37AM|#

watching women stomp on little animals

What the

MJ|9.30.09 @ 7:51AM|#

While a law preventing a someone from profiting from a crime (particularly crimes that are cruel to a person or animal)are a good idea in theory, this bill does sound like a mess that can be abused by unscrupolous cops and prosecutors. Come up with something better or drop it.

Suki|9.30.09 @ 7:59AM|#

This stupid law has prevented me from legally pursuing a rewarding career in crush videos and has severely impacted my shoe collection.

Didn't it even prohibit stomping on bug videos too?

|9.30.09 @ 8:00AM|#

Wrinkles like that could imperil the entire genre of hunting and fishing videos.

I don't care. I still oppose the law.

Suki|9.30.09 @ 8:03AM|#

Wrinkles like that could imperil the entire genre of hunting and fishing videos.

But the hunters and fishers with wrinkles have the best shows!

Art-P.O.G.|9.30.09 @ 8:07AM|#

One of the rare instances that a law was made to prohibit a genre so niche that I'm still not sure it even exists.

Suki|9.30.09 @ 8:27AM|#

Good morning Myspace buddy APOG!

Xeones|9.30.09 @ 8:28AM|#

I know what you mean, Art! For similar reasons, i'm no longer sure i believe in Japan.

Rich|9.30.09 @ 8:29AM|#

Does stomping on Beanie Babies count?

anarch|9.30.09 @ 8:30AM|#

the Justice Department will avoid such bizarre results by applying the statute judiciously

Joel|9.30.09 @ 8:33AM|#

Does stomping on Beanie Babies count?

I'm pretty sure there's an upcoming law to make this mandatory.

anarch|9.30.09 @ 8:44AM|#

What about intra-wildlife conflict, like all those edumacational films, which surely arouse some viewers' passions? What about wildlife vs. passive injury-producing agents (boar vs. tree [Go, Tree!])? What about boar vs. artificial wall caught on a surveillance camera? What about dog vs. skunk? What about tapeworms? What about this?

Rich|9.30.09 @ 8:46AM|#

... could imperil the entire genre of hunting and fishing videos.

Not to mention half the cartoon industry. [Beep-beep!]

Art-P.O.G.|9.30.09 @ 8:50AM|#

Top o' the morning to you, Suki.

|9.30.09 @ 9:00AM|#

Art-P.O.G.-

Tell me why I was "off-base" in asserting that libertarian philosophy does not require its adherents to subscribe to the notion that the state must have a monopoly on the administration of justice.

Show me Rothbard's pronouncements on the matter. Did he label as "loons" those who do not subscribe to the historically disastrous concept that the state must have a monopoly on the administration of justice?

How about Albert Jay Nock? How about Lysander Spooner? Show me. Prove me wrong.

|9.30.09 @ 9:03AM|#

DAMMIT, i knew i should've used COD's with ACME instead of visa. Now they have a paper trail leading from that damn bird to me.

Brian|9.30.09 @ 9:11AM|#

"Didn't it even prohibit stomping on bug videos too?"

So would that make news organizations cuplable for 'possessing with intent to distribute' the video of Obama swatting the fly during an interview?

|9.30.09 @ 9:17AM|#

The Crush fetish is very real, as is the "Girls in Bikinis Popping Balloons" fetish. Crushing blends humiliation into the much more common foot and shoe fetishes. It can also figure into some BDSM role playing where the small creature is a psychological surrogate for the masochist, allowing utter destruction surrogate where the masochist cannot be. And the humiliation factor is here as well, as the slave may be made to lick or otherwise clean the boot of offal.

Art-P.O.G.|9.30.09 @ 9:22AM|#

Tell me why I was "off-base" in asserting that libertarian philosophy does not require its adherents to subscribe to the notion that the state must have a monopoly on the administration of justice.

In "abstract space" I'd say we're free to debate the idea, but as far as practicality is concerned 1) enforcement of the law and administration of the justice system should be centrally administrated and 2) I don't think a state budget crisis means that you stop prosecuting people. The general shittiness of California's government doesn't preclude them from prosecuting someone.
Please tell me what, other than vigilante justice or the state-sponsored kind of law enforcement, could (realistically) have apprehended or confined Polanski.

Art-P.O.G.|9.30.09 @ 9:24AM|#

That's some pretty hardcore masochistic ideation, SugarFree. Far be it for me to judge, though*.


*Psych, I'm judging.

kinnath|9.30.09 @ 9:39AM|#

Tell me why I was "off-base" in asserting that libertarian philosophy does not require its adherents to subscribe to the notion that the state must have a monopoly on the administration of justice.

Changing the goal posts this morning are we?

Yesterday you were arguing that state has NO legitimate role in law enforcement. This is not the same as saying the state has monopoly control of law enforcement.

Even after a good night's sleep, you're still a blithering idiot.

|9.30.09 @ 9:44AM|#

LibertyMike,

If there were competing justice systems (let's say one state and 3 private), perhaps one of the private ones would have apprehended Polanksi in 1978 when he first escaped. But what we perhaps wish could have occurred isn't reality in this case. Maybe someday it will be. Until then, are we to let people off the hook for terrible crimes because they got away for a long time before being caught, or because the entity that is finally able to administer justice lacks funds? They've never stopped trying so I don't see why time matters. They were basically blocked by other government entities. Not sure why that's OK in your mind.

|9.30.09 @ 9:45AM|#

kinnath-

If I did not get a good night's sleep, would you cut me some slack?

Hanyou|9.30.09 @ 9:45AM|#

Unlike many people on this site no doubt believe, I think laws against animal cruelty should be enforced. Should it extend to videos? Doubtful. If animals have any rights at all, their rights are clearly not on par with human rights. A visual record of the abuse of an animal is not equal to a visual record of the abuse of a human being.

So while I would very much like the production of these videos to be illegal, I can't think of a viable reason to make their distribution illegal.

Though I do worry about the precedent of protecting ALL videos of abuse in the name of free speech--would libertarians have it extend to videos of abuse of human beings? It's a bit of a manufactured slippery slope; on the other hand, it's a very real concern of mine since I've seen people argue in favor of legalizing such videos by similar logic. I could never endorse such a blatant violation of a human victim's inherent rights.

Animals? I think most people can agree there's a wide gulf there.

kinnath|9.30.09 @ 9:51AM|#

If I did not get a good night's sleep, would you cut me some slack?

Only if you were having a good time ;-)

John Tagliaferro|9.30.09 @ 9:53AM|#

I attempted the assist for my blogger buddy but could not find any stories of people being prosecuted in relation to bug crush videos. Thought I had heard about that a while back too.

SugarFree, have the authorities harassed you about your collection yet?

Joe M|9.30.09 @ 9:54AM|#

Ugh, SF, I can't finish my breakfast now. I hope you cut and pasted that from somewhere else, rather than thoughtfully assembled it from deep analysis.

John Tagliaferro|9.30.09 @ 9:54AM|#

At least Polanski wasn't using 13 year olds for crush movies. He has that going for him.

|9.30.09 @ 10:01AM|#

What does "depiction" mean? I suppose I could have actually read the piece, but that requires effort. Is simulated cruelty "depiction"?

|9.30.09 @ 10:02AM|#

Didn't it even prohibit stomping on bug videos too?

I was amazed watching some behind-the-scenes for a movie with a lot of bugs, "joe's apartment" prolly, when they explained how none of the cockroaches were harmed. "Really? I cant believe anyone gave-a-shit in the 1st place."

This gives us a solution for change though. Just get a job with Orkin or your local pest eliminators, and tape yourself killing the bugs. Then distribute from a company computer. That should make the company responsible enough for prosecution, right?

|9.30.09 @ 10:07AM|#

On the other hand, if you actually enjoy animal cruelty, then you might just be a sociopath. But yeah this law would be pretty fucked up.

|9.30.09 @ 10:09AM|#

Ah, but what if the animals are just simulated? Then we have to decide whether we're trying to prevent animal abuse or trying to prevent people getting off to animal abuse.

|9.30.09 @ 10:12AM|#

Sorry, Joe M. Wrote it myself. But most of it was from an article I read a few years ago, if that helps.

I never forget anything awful I encounter.

|9.30.09 @ 10:13AM|#

kinnath, I am not changing the goal posts. My posts at 5:16 pm and 7:34 pm yesterday on Nick Gillespie's Polanski thread are just what I am asserting this morning.

Good time? Yeah, I had to pick up my nephew at the airport-his flight was due in at about 10:00 pm. It arrived at 11:45. You think I am nuts posting - you should have seen me last night with Southwest's personnel.

At any rate, time to let this one drop. All I ask is that you do not consider me an idiot for espousing a position that Rothbard and others have also supported.

Art-P.O.G.|9.30.09 @ 10:24AM|#

But most of it was from an article I read a few years ago, if that helps.

An article that you wrote. BURN!

|9.30.09 @ 10:25AM|#

I remember that shortly after I moved to Arizona, someone threw a Bichon Frise puppy out of a car window going 70 MPH. It was all over the news for a week. Eveyone, and I mean everyone, around town was talking about it. People all over the city were trying to find the son of a bitch to kick his ass. There wasn't enough evidence to ID the guy, but that didn't stop people from trying. Honestly, had I not been new to the area, I'd probably be among them.

Why do I bring this up? People HATE true animal cruelty. Not the whiny crap PETA comes up with, but the real deal. This is one fight you guys are not going to win at the current moment. Once they start banning hunting videos, yeah, people will see the foolishness in this law. But right now, especially in the aftermath of that monster Michael Vick being allowed back into the NFL, you're only going to make things worse by pushing for this to be stricken from the law.

Oh, and the puppy lived with no permanent injuries. Gotta hand it to dogs, they're far more durable that humans.

|9.30.09 @ 10:33AM|#

...someone threw a Bichon Frise puppy out of a car window going 70 MPH.

Have dogs ever fallen out of car windows before? Mine arent allowed to hang out the window when we go somewhere, but other ppl leave the whole window open.

It does seem most likely that it got tossed, considering the breed, and the fact that they found the dog but no owner-searching-for-said-dog somewhere in the area.

Just sayin, maybe it could have jumped or fallen out. If the driver was elderly (or hell, just a normal busy person), they might not realize until they got home. Then their neighboor catches them in the driveway to tell them about "the horrible bastards who threw a dog out a window" they heard about on the news just now.

/devil's advocate off

Sick Dog-Tossing Fuckers

John Tagliaferro|9.30.09 @ 10:37AM|#

thenino85,

If that dog would have just obeyed its master it might not have been taken for a ride. Ever think of that?

Devil\'s Advocate|9.30.09 @ 10:56AM|#

What about snuff films?

|9.30.09 @ 11:05AM|#

They should just make it legal for me to hunt down the people who make and watch crush videos and then make them fight against pit bulls while I film it. And then I can sell the videos. It's free market solution to animal cruelty and sexual stupidity. You can produce and watch that shit all you want, but you can also get mauled to death by pit bulls for doing so. Just for variety, sometimes you might want to use rabid wolverines instead. Or weasel in the colon. Or getting eaten by Thulsa Doom's giant pet snake.

|9.30.09 @ 11:30AM|#

Warning, it's disturbing:
Chick farm grinder
So, in theory, if the group that made this video to stop the practice succeeded in redefining the practices as cruel, then they would be liable for creating the video under this law?

|9.30.09 @ 11:48AM|#

Sadly I think this type of thing requires people (and law enforcement) to exercise common sense. Just like things like child porn laws.

The average person should be able to tell the difference (like with the case of the parents being turned in by Walmart a couple of weeks ago).

If it's really animal abuse, then yes it should probably be illegal just like kiddie porn, if it's not, then people should exercise some common sense and drop it.

Jason|9.30.09 @ 12:14PM|#

Simulation is not prohibited under the statute.

Also, the fact that Stevens was the first prosecution, six years after the statute was enacted, should prove rather silly these doomsday fears of the erosion of all First Amendment protection for videos.

hotsauce|9.30.09 @ 12:24PM|#

What about Food Network? Top Chef, anyone? Last I checked there were people fileting rack of lamb and steaming lobsters on those shows. For pleasure!

|9.30.09 @ 12:38PM|#

Conan the Barbarian rules. The Mako narration and soundtrack alone makes it the best fantasy movie ever made. I'm sure the framers of the Constitution would easily agree with this objective scientific fact.

But not even that cryptofascist Alexander Hamilton could not of foreseen the making of Conan the Destroyer and the insidious corrupting effect it would have on the art world in general. The genre has never quite recovered. (Sure, Lord of the Rings LOOKED great, but if I had to endure another 5 minute monologue on friendship from Sam to Frodo I'd of cried fire in theatre.)

Destroyer should be banned on principle...but if we have to pretend it's to protect animals, than I support this new law. We should ban Moonraker too. That movie sucked ass.

|9.30.09 @ 12:39PM|#

"could of foreseen"...

|9.30.09 @ 1:05PM|#

Keep trying, Beezard.

"could have foreseen"

LarryA|9.30.09 @ 1:09PM|#

Though I do worry about the precedent of protecting ALL videos of abuse in the name of free speech--would libertarians have it extend to videos of abuse of human beings?

But the point is that many of the videos covered do not depict illegal activity, as defined by where they are made. To take a case blogged earlier, if it's not illegal in a state for two teenagers to have sex, why should they be prosecuted for emailing each other a "child abuse" video showing the consensual act? Why should such a video be illegal in a state with different laws?

Ah, but what if the animals are just simulated? Then we have to decide whether we're trying to prevent animal abuse or trying to prevent people getting off to animal abuse.

Given laws against computer-simulated child abuse, I'd say that question has been answered.

If it's really animal abuse, then yes it should probably be illegal just like kiddie porn, if it's not, then people should exercise some common sense and drop it.

If common sense were only common...

The law would have been a lot better if it only included depictions of activities illegal where the video was made. A lot harder to enforce, but better.

|9.30.09 @ 1:14PM|#

Sadly I think this type of thing requires people (and law enforcement) to exercise common sense.

Good luck with that. I cant place the date but I'm pretty sure common sense has gone extinct, thanks to AGW.

Last I checked there were people fileting rack of lamb and steaming lobsters on those shows. For pleasure!

Well, the butcher is prolly liable for the lamb, not the show. But those lobsters.....lets get our torches and pitchforks. ;)

We should ban Moonraker too. That movie sucked ass.

At somepoint in the TBS/TNT/Spike Bond-Lovefest that they've had going the past few years, i realized i was taking the movies too seriously.

Sure, since the Dalton films, they're almost serious espionage flicks. Everything before that is like a parody of a spy film. Which would make Austin Powers a Parody-of-a-Parody.

Or maybe they just didn't realize how absurd most of it looked on screen.

Anyway, they're a lot more entertaining if you take them as a comedy. Re-watch Moonraker in that light and see how it strikes you.

|9.30.09 @ 1:17PM|#

Keep trying, Beezard.

lol. That you for those words of inspiration, grammar gestapo.

Ska|9.30.09 @ 1:19PM|#

This thread just makes me think of Bear Grylls eating some kind of larva the size of a fucking twinkie. It actually exploded in his mouth and shot out some yellow and red liquids.

|9.30.09 @ 1:19PM|#

"Thank you"

my kingdom for an edit button...

|9.30.09 @ 1:40PM|#

@wylie

At somepoint in the TBS/TNT/Spike Bond-Lovefest that they've had going the past few years, i realized i was taking the movies too seriously.

Sure, since the Dalton films, they're almost serious espionage flicks. Everything before that is like a parody of a spy film. Which would make Austin Powers a Parody-of-a-Parody.

Or maybe they just didn't realize how absurd most of it looked on screen.

Anyway, they're a lot more entertaining if you take them as a comedy. Re-watch Moonraker in that light and see how it strikes you.

Totally agree.

I just harbor an old and irreversible grudge against Moonraker because it came towards the end of a Bond marathon I stayed up and watched in my hormonal youth. Bond movies were the epitome of cool to me back in those years. And to suddenly see him get raped on film like that....for some reason I didn't have an issue with Octopussy which was probably just as bad.

Anyway, they're all pretty ridiculous once they age a little. I just saw some Dalton one (or was it the other guy?)where he jumped after a plane that had rolled off a cliff, climbed inside of it and flew it away...

Funny enough, I think Conan the Barbarian manages to stand the test of time...they could of boiled puppies during the making of the movie and I'd probably still like it.

Pantera|9.30.09 @ 2:11PM|#

What about the "The Godfather"? That was a real horse head.

|9.30.09 @ 4:00PM|#

they could of boiled puppies

Aaargh!

|10.1.09 @ 9:14AM|#

"Common sense"? Like not arresting a grandmother for buying two bottles of cold medicine...?

|10.1.09 @ 12:58PM|#

You know, not to be all logical, intelligent, and reality based, BUT ARE NOT HUMANS ANIMALS??? Or would the Supreme Court rule that humans are not animals (maybe we're vegtables? ...or to be legalistic, we're Supra animal, or some such construction). So wouldn't practically every movie and nightly news cast violate the law?