The Anti-Man-Eat-Dog Act

Jacob Sullum | April 23, 2009

This week the U.S. Supreme Court agreed to hear a First Amendment case involving a 1999 federal law that criminalizes production and distribution of videos depicting animal cruelty. The law was prompted by outrage over "crush" videos in which women step on small, furry animals in a manner that sexually arouses what I'm hoping is a very tiny percentage of porn fans. When Bill Clinton signed the bill, he instructed the Justice Department to focus on "wanton cruelty to animals designed to appeal to a prurient interest in sex." Yet all of the prosecutions so far have involved dog fights, footage of which is banned by the law even if the actual fights took place in places (such as Japan) where they are legal. Indeed, the ban covers videos of anything that now qualifies as illegal treatment of animals in the jurisdiction where they are sold, potentially including records of Spanish bullfighting, Russian bear baiting, Louisiana cockfighting, or even hunting out of season. The law exempts material with "serious religious, political, scientific, educational, journalistic, historical, or artistic value," opening the door to subjective, arbitrary, and unpredictable applications. The U.S. Court of Appeals for the 3rd Circuit found the law unconstitutional in 2007. If the Supreme Court reverses that decision, it will be creating a new category of speech that is outside the protection of the First Amendment.

The 3rd Circuit's ruling is here (PDF). I noted the case in January.

Comments

Paul|4.23.09 @ 8:00PM|#

The law was prompted by outrage over "crush" videos in which women step on small, furry animals in a manner that sexually arouses what I'm hoping is a very tiny percentage of porn fans.

?!!!

I uhh... there're actually people who... never mind...

Sexually aroused?!! No, I don't believe it.

jgr|4.23.09 @ 8:10PM|#

What about when women stomp on small, furry animals during BATF raids?

Suki|4.23.09 @ 8:45PM|#

The law was prompted by outrage over "crush" videos in which women step on small, furry animals in a manner that sexually arouses what I'm hoping is a very tiny percentage of porn fans.

Puritan freak. It includes bugs too, but bugs equal torture at Reason, even of they are not harmed.

When Bill Clinton signed the bill, he instructed the Justice Department to focus on "wanton cruelty to animals designed to appeal to a prurient interest in sex."

Would that be a signing statement that you writers are always wetting your pats about, or is it something else that you like better?

jtuf|4.23.09 @ 8:53PM|#

When Bill Clinton signed the bill, he instructed the Justice Department to focus on "wanton cruelty to animals designed to appeal to a prurient interest in sex."

So crushing small furry animals for Platonic entertainment is OK? These acts should fall under animal cruelity laws. Video taping it and selling the videos should not be a separate criminal act.

anarch|4.23.09 @ 9:08PM|#

PETA's gonna have to clean up their act.

economist|4.23.09 @ 9:40PM|#

"The law was prompted by outrage over "crush" videos in which women step on small, furry animals in a manner that sexually arouses what I'm hoping is a very tiny percentage of porn fans."
Really? WHAT THE F***? No, really. What the hell is that!?
Some people are pervs.

|4.23.09 @ 10:00PM|#

If the Supreme Court reverses that decision, it will be creating a new category of speech that is outside the protection of the First Amendment.

Really? I'd think it goes into the same category occupied by kiddie porn; depictions of illegal acts of wanton abuse of helpless, unconsenting creatures.

Seriously, if the SCOTUS rules that this stuff is protected speech, after ruling that saying "John McCain sucks" on TV on November 1 isn't protected speech, they need to have their heads examined.

|4.23.09 @ 10:02PM|#

These acts should fall under animal cruelity laws. Video taping it and selling the videos should not be a separate criminal act.

I take it you think child pornography should be legal then.

|4.24.09 @ 1:04AM|#

Sexually aroused?!! No, I don't believe it.

I had the same reaction. I guess you learn something new every day.

lukas|4.24.09 @ 1:27AM|#

I take it you think child pornography should be legal then.

Possessing and distributing it shouldn't be illegal, no.

Suki|4.24.09 @ 6:17AM|#

Something else I never believed was true is true.

Clinton was in favor of thought crimes.

|4.24.09 @ 8:46AM|#

crush videos

I'm guessing this appeals to mans basic survival instinct - but I'm no psychologist.

|4.24.09 @ 10:42AM|#

I'm OK with prohibitions on cruelty to animals. I'm OK with prohibitions on child porn as a component of prohibitions against child abuse. However, I think free speech trumps this one. Animals are not children. The cruelty is not compounded because you make a video of it.

Stormy Dragon|4.24.09 @ 10:43AM|#

Possessing and distributing it shouldn't be illegal, no.

It seems to me this is like saying that hiring a hitman should be legal since you're not the one actually doing the killing.

If you're purchasing media that cannot be produced except by the comission of a crime, then I'd say your purchase becomes a form of conspiracy to commit the crime.

lukas|4.24.09 @ 12:08PM|#

It seems to me this is like saying that hiring a hitman should be legal since you're not the one actually doing the killing.

If you're purchasing media that cannot be produced except by the comission of a crime, then I'd say your purchase becomes a form of conspiracy to commit the crime.

Much of the child porn that is around these days comes from times and places where the production of such media was/is legal. How is the buyer supposed to know?

Furthermore, the law is not content with forbid commissioning child porn (the equivalent of hiring a hit man). Neither does it settle for outlawing child porn sales (which could be strenuously argued to constitute conspiracy---but we do not do this for other crimes). No, it criminalizes the mere possession and transfer of such material. This position is totally incompatible with free speech rights. This is most obvious for the free speech rights of the "children" (minors) themselves: consider "sexting", or for a more elaborate scenario, imagine someone who had pornographic images/videos of themselves taken as a minor (willingly or not) and now, as an adult, wants to distribute those media. Shouldn't such a person be allowed to do that? Who are you to forbid it?

|4.24.09 @ 12:59PM|#

lukas,

Prosecution would be next to impossible if ignorance of the origin of the kiddie porn was allowed to be an excuse.

I would support changing the law so that the porn being produced in a jurisdiction where it was legal would be an affirmative defense. But this would be something the defendant would have to prove, rather than forcing the prosecution to prove it.

In short, I think the state's legitimate interest in protecting children from abuse trumps the alleged right to wank to kiddie porn. Similarly for wanton animal cruelty.

Stormy Dragon|4.24.09 @ 4:25PM|#

which could be strenuously argued to constitute conspiracy---but we do not do this for other crimes

Sure we do. Buying stolen good is illegal even if you didn't ask the thief to steal them.

lukas|4.24.09 @ 9:58PM|#

I would support changing the law so that the porn being produced in a jurisdiction where it was legal would be an affirmative defense. But this would be something the defendant would have to prove, rather than forcing the prosecution to prove it.

Now you're applying foreign (and possibly outdated) laws and throwing out the presumption of innocence. Kiddie porn sure does strange things to legal theory.

Sure we do. Buying stolen good is illegal even if you didn't ask the thief to steal them.

It's illegal, but it's not conspiracy to commit theft. It's receipt of stolen goods, a crime of its own.

Stormy Dragon|4.25.09 @ 1:48AM|#

throwing out the presumption of innocence. Kiddie porn sure does strange things to legal theory.

It's not a kiddie porn thing. Defenses based on asserting facts beyond those claimed by the plaintiff pretty much always shift the burden of proof to the defendant (after all, how can the plaintiff be expected to prove a claim they haven't made?):

http://en.wikipedia.org/wiki/Affirmative_defense

lukas|4.25.09 @ 11:27AM|#

So kiddie porn would remain illegal. Too bad for free speech.

|4.25.09 @ 4:06PM|#

I think that crushing a small animal for sexual arousal is totally wrong. At the same time, it seems totally hypocritical that killing an animal for sexual pleasure is strenuously prosecuted, while killing an animal in equally if not more painful ways for meat is totally fine, feeding small furry creatures live to a pet snake is utterly legit, and giving small furry animals all sorts of horridly painful experimental treatments is regulated but acceptable. I'm not sure that I'd want to criminalize all of those behaviors, especially use of animals in scientific research, but it really bothers me how this sort of legislation is based on whether we think normal people would be part of an activity rather than the effect that activity has on the animals in question. What happens to a pig raised for slaughter is far worse than what happens to a mouse in a crush video, it happens to far more animals, and yet there's very little pressure to regulate how pigs are slaughtered from an animal welfare perspective, and none to ban the slaughter. If we care about animals, we care about animals. If we care about banning creepy people's sexual fetishes, we're violating the first amendment.