Simultaneously protecting free speech and animal rights?

In United States v. Stevens, Robert J. Stevens was convicted of making three videotapes that depicted dog-fighting, and dogs being trained for fighting. The tapes were labeled as depictions of animal cruelty, and Steven’s was sentenced to 37 months in prison for violating the exception to the First Amendment’s speech clause that criminalizes videotapes and other depictions of animal cruelty.

Before U.S v. Stevens, the only unprotected speech under the First Amendment was fighting words, obscenity, incitement, libel, and child pornography. The result of U.S v. Stevens could add another item to this list. The law in question that might possibly be passed under U.S v. Stevens stemmed from crush videos which were outlawed in 1999 with a statute making it a crime to create, sell, or possess depictions of animal cruelty, if the cruelty is illegal by United States law. Crush videos are portrayals of women in high heels or sometimes even bare feet, crushing vulnerable animals ranging from insects to kittens. These videos apparently appeal to about 1,000 fetishists worldwide, and aren’t widely distributed, likely because a)they are now illegal, and b)most people find them absolutely revolting. At any rate, U.S. v. Stevens attempted to overturn the 1999 response to crush videos in order to protect Steven’s free speech rights due to the three dog-fighting videos.

The real question here (in my opinion) lies in the difference between depiction of animal cruelty, and the cruelty itself. If a dog fight tales places in a country where it is legal, this isn’t a problem. If it is taped in the country where it is legal, everything’s still okay. However, once that depiction is brought to the United States, where depictions of animal cruelty are banned, the depiction is deemed illegal even though it didn’t take place on American soil. This leads to the next question of the definition of animal cruelty, and what it consists of. Animals, it is assumed, don’t feel shame, and therefore won’t experience negative repercussions upon the release of videos of them. This differs from child porn, where shame plays a huge part in legislation meant to protect children and ban child pornography. 18 U.S.C. § 48 describes the current laws regarding depictions of animal cruelty.

18 U.S.C. § 48 defines animal cruelty as:

“any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State.”

When analyzing U.S. Stevens, I lean towards protecting his speech, only because of the consequences that may arise if his speech was prohibited. The videos that he narrated and distributed contain some material that is decades old, and this leads to the historical and cultural implications that could result from banning such videos. Should SLAPS apply, or should historical, artistic, or cultural depictions of “animal cruelty” be banned? Possible examples are: Videos of Eskimos whaling, an activity that’s been tradition in their culture for centuries, or a scene from the award-winning film Apocalypse Now where a live water buffalo is hacked to death with a machete. If Stevens’ speech wasn’t protected, it would mean that depictions such as those defined could also be prosecuted.

To protect Stevens’ speech, I would use Zechariah Chafee’s philosophy concerning free speech. Chafee believes in protecting speech that serves social interest, however he doesn’t protect “worthless” speech, which he specifically describes as profane, indecent, or defamatory. I choose Chafee’s philosophy because under a SLAPS clause, some material of what could possibly be labeled as animal cruelty (movie scenes, historical documentaries, images depicting a cultural traditions i.e. bullfighting) would be protected because it serves social interest by educating society. Chafee might argue that videos of dog-fighting serve social interest because they are depictions of a long-standing cultural activity that takes place in many countries worldwide.

Although I think that some depictions of animal cruelty (those which serve a greater purpose) should be protected, I think that these depictions should not harm animals. Meaning that although dog-fighting, or cock-fighting, or whaling, could be depicted, it couldn’t be a real-life depiction of the action taking place but instead a simulation. However, I would protect previous depictions of real-life depictions under a SLAPS clause (on a case-by-case basis) due to their historical value, unless they were particularly offensive i.e.crush videos.

In the case of animal cruelty and in order to support my stance on depictions, I found that it was hard to use provisions under New York v. Ferber due to the sexual aspect of the speech. When it comes to animals and sex, I don’t think that any speech should be protected, and therefore the government has a “compelling interest” to protect the sexual exploitation of animals, which I believe are as vulnerable as children regardless of their ability to feel shame. The actions, which are already illegal, should remain that way, and I feel that depictions of these actions can serve as encouragement to turn fantasy into reality in a very disturbing way.

However, Stevens speech clearly doesn’t have a sexual element to it, and therefore doesn’t fall under the same requirements as child porn. Since I want to protect Stevens’ speech, I would use Chaplinksy v. New Hampshire, a landmark case that deals with worthless speech. In order to separate animal depictions that I deem acceptable from those that should be depicted, I would divide them into categories of worthless and not worthless speech. Depictions that fall under the SLAPS clause would not be worthless speech, but those that actually cause harm to animals would be worthless.

Overall, I would protect Steven’s speech due to the repercussions of prohibiting his videos. However, I would try to implement my stance on the depictions of actual animal cruelty versus depictions that don’t actually harm animals in order to bring the public images of cultural traditions without actually harming animals, while allowing the historical depictions to still exist and be watched without repercussions.