'Can Congress Ban the Human Sacrifice Channel?'

Yesterday the Supreme Court heard oral arguments in U.S. v. Stevens, the case involving the federal ban on depictions of animal cruelty that I discussed in my column last week. Deputy Solicitor General Neal Katyal had a hard time explaining why the Court should carve out a new category of speech that is beyond the First Amendment's protection: commercially distributed visual or audio recordings of animal mistreatment that is illegal in the place where the recordings are produced, possessed, or sold. He insisted that the law is designed to cover only material similar to "crush videos" (a genre of fetish porn in which women stomp on little animals) and politically incorrect depictions of dog fighting such as those sold by Robert Stevens, the defendant in this case. Hence the exemption for material with "serious religious, political, scientific, educational, journalistic, historical, or artistic value."

Justice Sonia Sotomayor (whose free speech record prior to joining the Court was mixed) zeroed in on the subjective, politically loaded judgments required to apply that exemption, pressing Katyal to explain the legal distinction between Stevens' videos—which show dog fighting in Japan, where it is legal, and in the U.S. during the 1960s and '70s—and the much more explicit and extensive images of dog fights in David Roma's 2006 anti-dog-fighting documentary Off the Chain. Katyal allowed that "the line will sometimes be difficult to draw." No kidding. Is there any question that if Stevens' videos had condemned dog fighting, instead of using it to illustrate the characteristics and behavior of his beloved pit bulls, he never would have been arrested, let alone sentenced to three years in prison?

Justice Antonin Scalia asked if a bullfighting enthusiast could be prosecuted under the statute for selling videos "showing people how exciting a bullfight is." Katyal said "there is no realistic danger" of such a prosecution. Why not? Unlike Stevens, who says dog fighting should remain illegal, the hypothetical bullfighting fan aims to promote the sport he documents; he is advocating the underlying "animal cruelty" that the law supposedly aims to combat. Doesn't that make his actions worse than Stevens'? Whatever the likelihood of such a prosecution, Katyal said, the prohibition would be tempered by "as-applied constitutional challenges that will be inferred from case to case." So enough with this "endless stream of fanciful hypotheticals." In other words, producers and sellers of photographs and videos have to anticipate both prosecutorial whims and, if they're wrong about that, the outcome of an expensive, time-consuming legal challenge. Can you say "chilling effect"?

In addition to Sotomayor and Scalia (who wanted to know exactly what kinds of hunting videos would be prohibited under what circumstances), Katyal faced highly skeptical questions from Chief Justice John Roberts and Justices Stephen Breyer, Anthony Kennedy, John Paul Stevens, and Ruth Bader Ginsburg (who rattled off a list of various animals whose hostile, human-arranged encounters might be covered). That's seven out of nine justices. Justice Clarence Thomas, who generally does not ask questions during oral arguments, has a strong record of defending freedom of speech (outside the context of prisons and schools) and is likely to be skeptical of this ban as well. So I count at least eight probable votes for dramatically narrowing the scope of this statute or overturning it entirely.

The justice who seemed most inclined to narrow the statute rather than toss it out was Samuel Alito, who also gave Stevens' lawyer, Patricia Millett, her toughest moments by asking her to ponder the constitutionality of banning a hypothetical Human Sacrifice Channel. After much hemming and hawing, Millett's answer seemed to be that a ban might be constitutional if it were narrowly tailored to achieve the compelling government interest of preventing the sacrifices themselves (assuming they were being performed so they could be televised and they would not happen without an audience). But if the ban were aimed simply at preventing people from seeing offensive images, she said, it would not fly. No one asked whether her answer would change if the sacrifices were volunteers.

The transcript of the arguments is here (PDF).

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  • ||

    Jeebus H. on a pogo stick. The Constitution says "Congress shall make no law . . . ." What is so fucking hard about that? I would have thought oral argument would have been:

    Q: Did Congress pass this law?

    A: Yes.

    Q: Does this law abridge the freedom of speech or of the press?

    A: Yes.

    Next!
    (2) Does this law abridge

  • deb||

    Laws against perjury abridge the freedom of speech . . . are those unconstitutional as well?

  • Ska||

    But stepping on squirrels for jerkoff material is wrong!

  • Suki||

    Give Justice Sonia Sotomayor some props here. She sounds like she is for cock fighting too. It's like a bonus.

    Like I said the last time this came up, this stupid law prevented me from entering the rewarding career field of crush video actress and has severely impacted the expansion of my shoe collection in a negative manner!

  • Humanure||

    Will I be arrested to loaning my "Faces of Death video" to my friends?

  • alan||

    That was the first thing that popped in my mind when I heard about this line of questioning on the NewsHour last night. Why the hypothetical when there exist a real example. The Faces of Death videos have been around since I was a kid, and given that violent crime rates have been steadily decreasing we can only assume a minimum negative impact on society given their existence, so there is no compelling societal reason to ban them.

  • Humanure||

    Technically, I don't own a copy, but my friend does. About 20 years ago, I went to his apartment to go skiing. When I got there, he and is brother were watching it while eating plates of big greasy pork chops and drinking Mescal. I was like, whoa!

  • ||

    The justice who seemed most inclined to narrow the statute rather than toss it out was Samuel Alito, who also gave Stevens' lawyer, Patricia Millett, her toughest moments by asking her to ponder the constitutionality of banning a hypothetical Human Sacrifice Channel.

    My answer would have been: "Your Honor, Congress may pass no law abridging the freedom of speech or of the press."

  • CaptainSmartass||

    At which point all nine justices would've laughed at you for your ignorance of Constitutional law.

  • The Extispicator||

    "crush videos" (a genre of fetish porn in which women stomp on little animals)

    Maybe I'm a prude, but is there really a constituency for a fetish this twisted, this specific? Enough of a constituency for this to be its own genre? I know there's a lot of fetishes out there - most of them at least make sense to me even if I don't share them. But this one? Really?

  • kinnath||

    Paging JSubD . . .

  • Luke Johnson||

    Really?

    Sure, there are all kinds of incomprehensible fetishes floating around. I blame the internet.

  • zoltan||

    Blame the internet for allowing you to hear about them. I wouldn't blame it for such fetishes existing though.

  • ||

    Fuck people who find dog (or bull) fighting entertaining. Fuck them very much. Fuck those who profit from other's who find sick amusement seeing animals mistreated and tortured.

    Oh yeah, almost forgot ...
    I'll just have to live with being offended by these amoral troglodytes. Freedom isn't always pretty and is not designed to protect my superior moral sensitivities.

    The First Amendment fucking rocks.

  • The Angry Optimist||

    My answer would have been: "Your Honor, Congress may pass no law abridging the freedom of speech or of the press."

    So that would be your answer to the Child Porn Channel, too?

  • kinnath||

    Children do not have the mental faculties to consent to sex, so sex with a child is a forcible crime which most libertartians will say is something the state should assist in preventing and punishing.

    Do you have any other pet complaints about libertarians you would like to air today?

  • CaptainSmartass||

    So your argument is that animals can consent to torture, so that makes it alright?

  • kinnath||

    Dear CaptainDickHead, the topic at hand was child pornography, you make a serious logical failure in trying to extend the comment beyond that context.

    Animals are property, the ability or lack of ability to make informed consent is not relevant.

  • Robert||

    So make the child someone's property.

  • MJ||

    The question comes down to can the government make illegal the viewing and distribution of recordings of that crime? How do you square that with free speech?

  • Humanure||

    Is it part of the basic cable package or a premium channel?

  • jtuf||

    So, the government thinks it is OK to distribute this image for platonic reasons but not for sexual gradification. Hmm, I think the next porn video I make will feature a unicorn hunt.

  • ||

    TAO - This is where I get hung up, as well. But I think it matters that the animals are your "property," while the child is a human, just one not of the age of consent, to which you have guardianship.

    Even then, the video is probably not illegal, as much as evidence of a crime.

    The whole "moving picture" thing really messed with the founders' intent, since word/verbal depictions of such things don't actually involve the abuse that a video requires.

  • ||

    So that would be your answer to the Child Porn Channel, too?

    Porn using consenting adults as actors/actresses, even if they're convincingly playing the part or a pre-pubescent child, should be legal. Porn using real children, no.

  • Zeb||

    I feel a need to stand up for bullfighting here as I am a big fan (of the Spanish variety where the bull dies). Those bulls live very nice lives (by cattle standards) for several years before having a really shitty last 20 minutes or so of their lives. I really don't see this as being any worse of a life overall than cattle involved in the beef industry in the US. Three years of running free and doing whatever bulls like to do with practically no human intervention followed by 20 minutes of having several dudes poke you with sticks while you chase them around an arena sounds to me preferable to long forced drives followed by months in a high density feed lot with a bloated belly before finally having your head bashed in.

  • jtuf||

    If someone puts a collection of PETA documentaries on a website and advertises it as porn, should they be arrested?

  • kinnath||

    Yes, but not for the reasons you imply.

  • ||

    J sub D - I agree. Except that I'm not sure how the same logic doesn't then make Stevens' video illegal.

    That's why I think the whole "property" thing has to come in.

  • The Angry Optimist||

    Porn using consenting adults as actors/actresses, even if they're convincingly playing the part or a pre-pubescent child, should be legal. Porn using real children, no.

    Why do you hate free speech?

    What would you say to someone who didn't make the child-pornography, but distributes it? He didn't have any part in actually abusing the child. Same thing with the crush videos.

  • jtuf||

    TAO, children get more legal protections than animals. That's why we don't cook them on the grill.

  • Robert||

    What's the difference what their legal status is? Pain is pain. If you were in pain and then told someone owned you, would that make it hurt any less?

  • Colonel_Angus||

    Hmm... It might. I think I see the potential for a new fetish.

  • PM||

    A human child is sentient, and therefore capable of developing the reasoning required to understand how/why they are being harmed, and why this is a bad thing; an animal can't and is none the wiser.

    Take it you're a vegetarian, then?

  • ||

    jtuf - Another thing - the reasoning seems to be that Stevens is "promoting" an illegal activity (i.e. - arguing for legalization).

    That just seems wrong. So you couldn't make a video to make your point that X should be legal? Does that make any and all pro-marijuana videos/documentaries illegal?

  • The Angry Optimist||

    jtuf - I get that. What I am saying is that the Child Porn Channel didn't actually violate a child's rights.

  • Kevin||

    That would potentially violate the child's (aka victim's) privacy.

  • MJ||

    But such a channel would be creating demand for violating many children's rights, encouraging people to sexually use children. They would be dealings with such people fully knowing what thos people did.

  • Colonel_Angus||

    I think the lack of legitimate consent of the victim kind of gives the victim "ownership" of the product and the existence of the child porn channel would continue to violate their consent.

    I'm having a hard time explaining that but I think the argument can be made that rights are still being violated.

  • ||

    Hey, wait, you can't cook children on a grill?

    I'll be right back.

  • The Angry Optimist||

    Hey, wait, you can't cook children on a grill?

    I mean, you can, if you want to be a barbarian about it.

    Children are meant for roasting. Duh.

  • ||

    Sauteed in butter with garlic and shallots, with a hint of terragon.

  • ev||

    This is where I kinda go anti-libertarian. Or rather, it makes me question myself into indecisiveness.

    Crush porn---sick shit. As an animal behaviorist by trade (in a way), I'm concerned for the rights of the animals being killed. Same with bull/dog fighting. I don't think that animals=human, but I still give a shit about their welfare. I think torturing an animal should be illegal, for example.

    But. If a woman is in the kitchen (where she belongs! end snark/evilness) and stumbles on a mouse and steps on it and kills it...that's certainly not a crime. So I recognize my incongruity on this matter.

    I also understand the cultural history behind dog/bull/cock fighting, which makes things trickier.

    Filming such a thing, however, should not be illegal at all. The act of dog fighting should be, but dissemination of words, pics or videos should be perfectly allowed, if sometimes frowned upon.

  • ||

    ev - how many worms/bugs/other critters do you think are crushed, killed and essentially tortured etc. during teh construction of a home?

    If I film the construction of said home, and catch a worm being torn in two and suffering a slow death, is that illegal?

    The problem I have with these laws protecting animals is that they are almost always only protecting the fuzzy, cute ones.

    Because of course, if killing animals were illegal and taken the the logical conclusion, homes couldn't be built.

  • ||

    I thought the whole point of oral argument before the Supremes was so the justices could test counsel's positions by subjecting them to an "endless stream of fanciful hypotheticals"

  • ||

    I have a dog. In fact, I've had dogs and cats and rabbits (oddly, I only grill children and never learned that roasting is the proper method - thanks TAO).

    But because of what I posted above, I just can't support laws that protect dogs/cats/pets.

    As much as I hate to see animals tortured, I just think its one of those things that true Libertarians have to chalk up to "messy" part of freedom and support. Its horrible, and I wouldn't do it, but that's the point to Libertarianism: You can do what you want, even if I don't like it, as long as it doesn't infringe on others' rights.

    I hate it, but that's not a good reason for a law against it.

  • Hanyou||

    This is precisely where the strictest libertarianism runs into the most problem.

    I would consider any pornographic video produced without the consent of the subject to be one of the worst violations of privacy (and thus, property) imaginable. It seems, however, that many libertarians would be content to allow these violations of privacy to be distributed without the victim's consent, provided the distributor did not commit the depicted crime himself.

    That doesn't matter. Distributing the video IS a violation of the victim's rights. Videos of real abuse of real people ought to be prohibited, and this is one domain in which I wouldn't allow getting the federal government involved, simply because this would barely be enforcable at the state level.

    Anyone who would allow a market in the abuse of humans to exist makes me question what they think the government's function is at all. If it is to more easily defend peoples' natural rights, then this "libertarian" government would be doing a very poor job of it.

  • ||

    Hanyou - I think unauthorized distribution of your image laws would cover the video. Its essentially a trademark issue. You can't use Ron Paul's face in your advertising campaign without permission, why would you be able to use anyone's image for profit purposes without permission?

  • Hanyou||

    Ah, good point. I'm just wondering how libertarian even unauthorized distribution laws are. I know that's a contentious issue too.

    I'd just be against all distribution of those videos. I'm strict when it comes to my privacy, and I think individuals can violate this just as easily as the government--and, if they distribute it online, the results are particularly heinous. I feel as though libertarians often miss this sort of thing.

    Putting myself in the shoes of the victim, I cannot fathom how traumatizing it would be if I were abused and this video were distributed without penalties for the distributors because "videos don't have a moral status." It's not just an emotional response, I find it logically inconsistent with principles of natural rights--especially if we're already conceding that government's legitimate function is to secure those rights.

    Your point makes sense, though.

    Obviously, animals are different.

  • ||

    What would you say to someone who didn't make the child-pornography, but distributes it? He didn't have any part in actually abusing the child. Same thing with the crush videos.

    TAO, distribution/purchasing of the kiddie porn makes you complicit in the creation of it.

    Same would go for the legendary and apparently fictional snuff films.

  • ||

    Free distribution raises a whole seperate issue.

  • P Brooks||

    Is there any question that if Stevens' videos had condemned dog fighting, instead of using it to illustrate the characteristics and behavior of his beloved pit bulls, he never would have been arrested, let alone sentenced to three years in prison?

    If "intent" determines guilt or innocence, I will definitely be using the "But I didn't *mean* to kill him!" defense.

  • ||

    J Sub - I think you'll find that in products liability, that isn't true?

    The courts are finding that a supplier of a product has no liability for a defect or failure to warn about a defect in the manufacturer's product.

  • The Angry Optimist||

    Anyone who would allow a market in the abuse of humans to exist makes me question what they think the government's function is at all.

    It wouldn't be a market in the abuse of humans. It would be a market in the depiction of the abuse of humans.

    Let's talk about where to draw that "privacy" line. Say that you see this in your local newspaper:

    A local man is under arrest on charges that he possessed child pornography. The video allegedly depicts a four-year-old engaged in oral sex and sexual intercourse with adults

    .

    Now, that is actually a depiction of the abuse of a child. A relatively benign one, perhaps, but still a depiction. To take it further, what if the newspaper ran stills from the video but blurred out the face of the victim? Then there wouldn't be a privacy violation either.

  • Hanyou||

    So because writing is a depiction, and a video of the event is a depiction, distribution of the video is no different?

    I would think that the image of the actual human being is different than words talking about the image of an actual human being.

    I concede they're both depictions, but one is far more detailed and thorough, and needed undergo no filtering process. It is the event.

    Blurring out the face of the victim is something I would consider too close for comfort, depending on just how much is visible. It's not just my face I consider inviolable property.

  • Hanyou||

    One question. If someone installed a spy camera in someone's home, secured a distributor of the live video who made it readily accessible to thousands for a period of months without the victim's consent or knowledge (I imagine no one, including the government, would have an obligation to notify the victim), would you consider this only a "depiction" of the person and not hold the distributor liable in some way?

    What's the substantive difference between standing five feet away from someone and viewing them through a TV screen? That the latter is data, or that it can be reproduced? I hold that regardless of a video's status, regardless of whether it is just a depiction, it is something more as well.

  • The Angry Optimist||

    TAO, distribution/purchasing of the kiddie porn makes you complicit in the creation of it.

    Then the distributors of dogfighting and crush videos are complicit in animal abuse. Now, you may not believe in animal abuse laws, but they exist, and by your logic, making an animal abuse video = abusing animals. Then we're back to the "What if it's a documentary?" question. What if I did a graphic documentary about underage prostitutes for the express purpose of outraging people to do more about underage sex trafficking?

  • Ska||

    Again (I believe the point was made in the original posting of this story), what is the big difference between a crush video and a fishing video? If you ate the animal in the crush video after filming, does that make it OK, because it's more like sport? We're going to decide if the nature of the animal's death is acceptable for filming?

  • Humanure||

    "What if I did a graphic documentary about underage prostitutes for the express purpose of outraging people to do more about underage sex trafficking?"

    Are you looking for financing?

  • MP||

    As this thread has shown, it's clear that the existing carve-out for pornography is just as vague as the one being proposed. Given that, I don't see a firm Constitutional case for why the animal cruelty carve-out shouldn't be granted.

    You can't have it both ways. If the Court can carve-out pornography (as it has already done) then it can carve-out anything with a loose definition that makes the majority ill.

  • Hanyou||

    In my view, it's a question of rights. Humans have rights. Videos of humans are distinct from words or drawings...they capture the real event.

    Animals, if they have any rights at all, do not have the same rights as humans. A video of the abuse of an animal is only as much of a "depiction" as a video of the abuse of a human, but where do animal rights come in? Do they have a right to privacy, liberty, or self-determination?

  • MP||

    The pornography carve-out is not just for child pornography. It's well past being a question of natural rights.

  • ||

    The speech you hate, is the speech that needs to be protected the most. People need to see this kind of shit. Just like people need to see the films of Auschwitz.

  • Humanure||

    "Do they have a right to privacy, liberty, or self-determination?"

    My dog will tell you yes.

  • Hanyou||

    Link me to his Treatise on Canine Self-Determination when he's done with it.

    I'm open-minded.

  • ||

    "Justice Antonin Scalia asked if a bullfighting enthusiast could be prosecuted under the statute for selling videos 'showing people how exciting a bullfight is.' Katyal said 'there is no realistic danger' of such a prosecution."

    Dear Neal: Let me know if being completely full of shit works at the Supreme Court level.

    Yours truly.

  • The Angry Optimist||

    Hanyou, I am still not seeing anything consistent from you on this point. You stated that distribution of child porn violates the child's right to privacy. I countered with the idea that you could distribute child porn but block out the victim's face. And what of that documentary on underage sex trafficking?

  • Hanyou||

    It depends what you're showing in the documentary. I think my views on that are obvious enough.

    As for blocking the child's face, my face is not the only thing I consider private. I'm a guy, but I think upskirt shots are a violation of victim's privacy even if the face isn't shown. I don't know what the equivalent would be.

    So the "blurring the face" solution isn't sufficient to protect what I view as privacy.

  • ||

    If blocking out the identity of somebody doesn't remove the right to privacy issues, then I suggest that "right to privacy" isn't really the issue. For most people, the victim is secondary. They want the perv punished.

  • Hanyou||

    Perhaps right to privacy isn't the word, then. I believe we have a right to privacy, but it stems from our right to property. Certainly taking pictures of a person's private areas without their consent is a violation of their most important personal property--their bodies.

    I actually don't suggest punishing consumers of these videos, mainly because it's difficult to determine who's honestly a deliberate consumer and who's not. Distributors are the target.

  • Ass of Catalonia||

    One shouldn't own the photons that bounce off of their property. One shouldn't own the likeness of their property either. If one wants recourse against another they need to prove the use of force or fraud against tangible property. One shouldn't be able to claim general privacy invasion or redefine property to include intangible things.

  • MP||

    I didn't know moose knuckles had prints.

  • ||

    TAO, distribution/purchasing of the kiddie porn makes you complicit in the creation of it.
    Then the distributors of dogfighting and crush videos are complicit in animal abuse. Now, you may not believe in animal abuse laws, but they exist, and by your logic, making an animal abuse video = abusing animals. Then we're back to the "What if it's a documentary?" question. What if I did a graphic documentary about underage prostitutes for the express purpose of outraging people to do more about underage sex trafficking?

    Distributin videos from Vick's arena would be illegal. Distributing videos from Japan(?) where it's legal no.

    Before you bring up a fictional country where fucking children and filming it is legal -

    I'm not gonna buy equating animal cruelty witht the sexual abuse of children. Children, even those in other countries, deserve much more legal protection than animals do.

  • MP||

    Maybe so. But how does that not open the door to other Constitutional carve-outs?

  • The Angry Optimist||

    Children, even those in other countries, deserve much more legal protection than animals do.

    I am not seeing where the distribution of sexual content involving children violates their rights, provided you go through the requisite steps to protect their identities.

    For what it's worth, this is all a thought experiment, and I do not advocate making child porn legal. Just saying that there are things to think about - things that require more than a "See the First Amendment"-type of response.

  • Hanyou||

    I'm curious. If you don't advocate making child porn legal, do you mind sharing your justifications? Or do you go the other way and say that these "crush" videos should not be legal, either?

    It's not just a matter of identity. Blur only the face of a person--child, adult, whatever--who is being abused, and you are still showing far too much. You are still showing their entire bodies, and the entire abuse to their bodies, something I would consider wholly private.

    It's difficult to logically prove this, I admit. How can you logically draw the line on what is private and what is not? But it's an inquiry worth making, because simply saying "all videos are just depictions period" is too simplistic and ignores the nuances. Here, sympathy may be somewhat useful in determining just what property is, and what constitutes violation of that property.

  • ||

    What if I did a graphic documentary about underage prostitutes for the express purpose of outraging people to do more about underage sex trafficking?

    You'd be a millionaire, that's what.

  • Robert||

    Has anyone yet brought up this one?:

    What if you make a film depicting legal hunting in a certain jurisdiction, and then sell or show it in that same jurisdiction, but outside the legal hunting season?

  • fortyouncer||

    That's a good one. But ponder this. What if hypothetical questions didn't exist?

    [should this have gone in the Carl Sagan thread???]

  • ||

    her toughest moments by asking her to ponder the constitutionality of banning a hypothetical Human Sacrifice Channel.

    Death to Videodrome! Long live the new flesh!

  • Decapitalist||

    "Anyone who would allow a market in the abuse of humans to exist makes me question what they think the government's function is at all."

    Ask anyone (all of us?) who purchases goods from an international corp that "buys" the natural resources of a poor country and then "pays" the local workers wages not fit to feed a family.

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