Justices Express Doubt On Animal Cruelty Video Ban
Oct 7th, 2009 | 22 responses
NOTE: I hope to periodically post on pending cases before the Court to give those who don’t follow the law an idea of what is going on. I will try to keep things in English but do need to use some legal language to explain what is going on with cases. I’d appreciate feedback as to whether my writing is too technical or if it is helpful
Thanks.
The late Justice Hugo Black was known for being absolutist when it came to the First Amendment. His policy was that if the Constitution said ‘Congress shall make no law’ then it means just that, that the Congress can make no law which abridges freedom of speech.
While the court has not as a whole been quite so absolutist in their view, they have been very reluctant to declare that entire categories of speech are outside the protections of the 1st amendment. The last time they did so was in 1982 when they ruled that child pornography was not protected (see New York v. Ferber).
The decision here was based on the fact that the government has a very compelling interest in protecting children from sexual abuse and that child pornography is directly connected to such abuse. It was such a compelling interest that the ruling was unanimous with even liberals like Marshall, Brennan and Blackmun upholding the limits.
Otherwise most obscenity type cases are governed by Miller v. California, a 1973 case which set the standard for what qualifies as obscenity and thus can be regulated by the government without violating the 1st Amendment. Those standards are
- the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest and that
- the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law and that
- the work, taken as a whole, lacks serious literary, artistic, political or scientific value
This case was a 5-4 ruling with four Justices ruling that, at least to some degree, obscenity is protected by the First Amendment, although even the dissenters would probably support laws restricting access to the material (IE keeping it out of the hands of minors, limiting use to adults, etc).
This week they are taking up the case of United States v. Stevens, which involves a law banning the production and distribution of animal cruelty videos. I don’t think there are many people who deny that Mr. Stevens is a disgusting person. If you want more details on just how violent the videos are you can do a web search but I’d rather not discuss the specifics here.
The issue in this case however is if this law goes too far and in particular the issue of how to apply the Miller rule to this kind of situation. For example it was pointed out that there are some anti cruelty videos from the Humane Society that show much more violent images, and yet the purpose there is to prevent abuse rather than to encourage it.
Justice Ginsburg asked whether this law should apply to things like cockfighting or bullfighting, and if so would that make the law too broad (so far it has only been applied to dogfighting).
Efforts by the government to connect animal cruelty to child pornography (and thus tap into the Ferber standard) were soundly rejected by the Justices.
Obviously it is impossible to predict anything but the only Justice who did not express serious doubts about the law was Justice Alito, the rest of the court seemed doubtful (and even he questioned the fact that the law had been applied only to animal fighting videos). The theoretical purpose of the law was to restrict so called ‘crush’ videos which had women abusing animals for sexual stimulation purposes.
I would thus guess that we are going to have at least five votes to strike the law, and possibly as many as eight.
While I find animal cruelty to be disgusting, I tend to agree with the sentiment that this law is too broad and so it needs to be struck down.
22 Responses to “Justices Express Doubt On Animal Cruelty Video Ban”
Kathy
I agree that the intent of the law is reasonable, but the law in questions is too flawed to stand. It's over generalized wording would make the Human Society a violator. Let's hope congress will try again when this is struck down.
HemmD -
I agree the law should be struck down as overbroad. I do not agree that it would rope in organizations like the Humane Society. If the Miller standard is applied, a specific exception is carved out for serious [socially beneficial] value, giving the Humane Society an out.
The law could, however, rope in things like promotional depictions and videos of rodeos, bull fighting, circuses, and zoos…if a PETA like organization pressed the issue on a sympathetic prosecutor. They [PETA] believe all of the above constitute animal cruelty. Not to mention depictions of outdoorsman activities like hunting and fishing also on PETA's radar.
And there's the problem. Instead of censuring content, it censors intent. You and I could display the same video. If I'm displaying in opposition to the taped action, then it's ok. If your displaying because you like the content, it's not ok.
The video displayed in this case came from Japan where dog fighting is legal. Are you going to decide if the display was for or against the act. How about bull fighting? How about two ants placed in proximity to each other to demonstrate inter-species warfare?
I'm not defending dog fighting, I'm defending the right of free speech. When a word's acceptability is based upon implied intent, you can't disallow it.
Yes, I agree with your analysis and like the way you phrase censoring intent rather than content.
Next level. How does that apply to “hate crimes” where a prison sentence is enhanced, often by years, for what one says during or prior to the commisssion of a crime, while the same words spoken in a different context, with different intent, would result in no penalty or could be applauded for their artistic or political value?
The idea behind hate crimes is not to punish someone for what they think or say during the commission of a crime but to add punishment when the motive for the crime was not directed toward the individual victim but toward the segment of society the victim represents. The crime has two victims in other words.
The idea of different levels of punishment based on motive (intent as you call it) is well established in the law. The various degrees of murder, for example, are based on motive without a single thought to the rights of the murderer's rights to think what he wants.
Also well established is the idea of crimes against society. To the extreme that we jail people who commit victimless crimes, such as drug use, solely on the crime against society idea.
M_M -
Thank you. I understand the difference in levels of intent (negligence, recklessness, intentional, pre-meditated, etc.) This is different from motive. Traditionally, motive is not a legal requirement for conviction, but is only an evidentiary issue to help prove certain levels of intent. Adding motive as an element of the crime seems a departure from traditional principles of crinimal law.
I'm not sure I agree that hate crimes are based on separate victims. If that were the case, it would not be a sentence enhancement but would be charged as a second, separate, criminal charge. Admittedly, this is an issue that requires more research on my part. At this point I'm just asking questions and absorbing responses and opinions.
I like the idea of discussing the Supreme Court oral arguments. Is there a post for the corporate money as free speech orals?
I wouldn't worry too much about language. The miracle of Google and Wikipedia can illuminate much. It is good for the soul to do some self-education.
Tidbits “
Next level. How does that apply to “hate crimes” where a prison sentence is enhanced,…”
I believe I do have a problem with the concept of hate crimes for the same reason, judging intent within the law. This is however, a much more tough nut to crack.
Premeditated murder is by its own definition, a worse crime by the intent of the victim while second degree holds a lesser sentence. Is intent built into these laws? Not exactly, premeds are planned while 2nd degree is “spontaneous.”
Hate speech prior to a crime, is that premeditated or spontaneous? If testimony can be shown that a bunch of guys were going out to “kick some fags” is that different than the punks who plan to beat up homeless guys for kicks? Both groups are anti-social monsters.
If I were King, I would leave sentencing more firmly in the hands of judges so they could throw the book at the heinous without the need for specific guidelines. Tied to that, I'd have oversight examinations of sentencing to verify that justice as defined by the law was really being carried out. I don't want some rich guy getting off easy just because he looks more like the judge than the victim does.
As is the problem with all obscenity laws, defining what is obscene becomes problematic. Motive is absolutely a factor. Here is a video that looks at both sides of the debate: http://bit.ly/4hTibx
“a law banning the production and distribution of animal cruelty videos”
If this didn't involve something under the PC scope, the NEA and other liberal “cool people” would be defending the videos, actually tame compared to some other things of what is claimed to be “art” [sic] and protected as a form of “free speech.” (Politically incorrect things may be ruthlessly suppressed.)
Are we voting for King? You got my vote.
LOL
“I think at some level Congress has a job to write with a scalpel and not a buzz saw in the First Amendment area”
I think this quote says is all. The sad part is that overzealous activists usually end up setting back their own agendas by cutting with such a broad stroke. Let’s hope they revise the piece quickly and get these…creatures…locked up for a long time.
My God, this Stevens person…thing, had got me seeing red.
” … motive is not a legal requirement for conviction, but is only an evidentiary issue to help prove certain levels of intent. Adding motive as an element of the crime seems a departure from traditional principles of crinimal law.”
I am not sure I understand your point. You are establishing a difference between intent:
“the state of a person's mind that directs his or her actions toward a specific object.”
and motive:
“something that causes a person to act in a certain way, do a certain thing, etc.”
which I cannot see.
Also I don't understand why motive would be more than “an evidentiary issue to help prove certain levels of intent.” when applied to hate crimes vs. other crimes. The defendant beat the victim. Why? If it was because he disrespected the defendant 's favorite football team, it is not a hate crime and the extra penalty doesn't apply. If it was because the man was a member of a protected group then it is. Simply put it is a matter of evidence whether it is a hate crime or not.
Are you saying motive is not a part of the difference between an intentional murder and a premeditated one? Perhaps an example would help. If I killed my uncle to inherit his fortune is that motive or intent? Can you move from intentional murder to pre-meditated murder without a motive? Or turning it around can you prove intent without motive? Honestly I don't know, I am not harassing you. Perhaps I am relying on common definitions of the words rather than legal ones.
Are there no other crimes in which motive plays a part in determining the level of punishment?
By separate victims I meant that the defendant committed a crime against the victim only because the victim was a member of a protected group. Thus the crime was also against the group. The crime is the same the only difference is the motive. You don't need motive to convict the defendant of battery. You do need it to convict him of the hate crime.
Don't get me wrong, there are a lot of reasons to question the very idea of a hate crime. Why would we protect one group over others? What is gained – extra deterrence, satisfaction of extra revenge, the good feelings and future votes of the protected group? I just don't see freedom of speech as one of them. Nor do I believe adding motive to establish the level of the crime would disqualify the law.
Golden Retriever? Mine is sitting next to me.
What an interesting discussion. I tend to agree with those who say the current law is overbroad, but I have a question, with regard to the issue of intent. Accepting the premise that some videos showing cruelty to animals (such as those made by the Humane Society) are intended to demonstrate the heinousness of such cruelty rather than appeal to people who enjoy watching them (and thus should not be caught up in this law), how does the viewer's intent in watching such well-intended videos enter into the equation? Or does it? In other words, if the Humane Society has videos on its website that depict extreme cruelty to animals, with the intent of condemning such cruelty and motivating animal-lovers to work to end it, and sick individuals watch such videos because they enjoy the cruelty, does that have any implications for this particular case — for striking down the law — or not?
I forgot… I have another, not directly related question, about Stevens. Setting aside the legal status of the videos themselves, the acts depicted in them are criminal (I haven't watched them; I'm going by what others have said about them). Has Stevens been arrested or faced any legal consequences for actually committing the cruelty, as opposed to videotaping it?
Therein Kathy lies the problem with laws that place restrictions on the first amendment, how do you decide what is and is not acceptable in terms of restrictions. The issue with the Miller test is how do you determine the intent of people and what is in their minds.
It's part of the reason I tend to lean to a Black position on the 1st amendment.
M_M -
The legal difference between intent and motive is as follows: Intent means a person meant to do it, i.e. it wasn't an accident or stupid reckless behavior. Motive is why a person did something. The law does not require proof of why a person did something. Often the “why” is locked in the defendant's head, and nobody knows what the “motive” was unless he/she talks. So the law relies on intent as the element of the crime. An “element of the crime” is what the prosecutor must prove to establish guilt. They do not have to prove motive. Btw, telling the jury that they don't have to prove motive is a stock part of many prosecutor's opening statements.
Here's a real example of a simple misdemeanor criminal statute.
“A person commits the crime of harassment if the person intentionally:
(a) harasses or annoys another person by:
(A) subjecting such other person to offensive physical contact.”
As you can see, motive is not mentioned in the statute. Example: If I shove you in a bar, and witnesses say they saw me reach out to shove you (intent), it doesn't matter whether the motive was because you were hitting on my date, whether you were in my way as I was trying to get to the Men's Room or whether I didn't like the message on your tee shirt. All that matters is that I shoved you and did so intentionally.
You also asked, “Are you saying motive is not a part of the difference between an intentional murder and a premeditated one?” Yes, actually that's true. Premeditation requires contemplation and [usually] planning. Intent can be formed almost instantaneously…you're hitting on my date or I see something I don't like printed on your tee shirt, so I reach out and shove you. Intentional, not premeditated. No motive need be proven.
Perhaps a good and understandable example would be a serial killer. Who knows what motivates a serial killer? I don't. But, serial killers do contemplate and plan their killings, often stalking their victims and planning the event prior to the kill, or at the very least they contemplate, obsess sometimes, about how to kill in certain situations. They act with both intent and premeditation, but the “motive” is unclear to most rational people, and therefore not necessary for conviction.
Dear Ms. Kattenburg -
Great question. The law only cares about the intent of the defendant. If I sell you drugs, the law asks whether I intended to do so, not what your intent was in buying them (use them, give them to friend, flush down the toilet). Same here. If the Humane Society used this film, and they could, for a [socially beneficial] purpose, they would be protected because their intent was not prurient, regardless of what any given recipient might use it for.
That's one of the great difficulties with First Amendment interpretation. How do say it's protected speech for one purpose, but unprotected speech for another purpose? For years pornographers used the ruse of distributing their wares under the guise of “educational” material to circumvent pornography statutes.
One of the other commenters said this film came from Japan, and that Stevens was distributing it but did not make it. Don't know if that's true, but if it is you couldn't go after him for the actual cruelty to the dogs.
Another point about this law, aside from the first amendment aspect, is the question of the larger interest it serves — or doesn't. I'm not at all sure if this is germane in the legal sense, but what I ask is, What good does it do to ban animal cruelty videos? Banning animal cruelty videos does nothing to stop actual cruelty to animals. So what is the law accomplishing?
Oh, I must have missed that other comment. That does answer my question about Stevens' direct culpability for the cruelty.
How do I refer to you? Mr. Tidbits?
Dr. E calls me Z, short for Zorro of Carthage, or g.c. …that's real. You choose or just “Hey Dummy”.
)
g.c.
that was excellent tidbits, clear and brief re dif between motive and intent.
E.