Dog-Fighting and the First Amendment

06/25/2010 05:12 am ET | Updated May 25, 2011

In United States v. Stevens, the Supreme Court, in an eight-to-one decision, held unconstitutional a federal law that prohibited any person to disseminate videos of dog-fighting or other acts of animal abuse. The decision surprised many people, who thought that such videos have nothing to do with the First Amendment. More specifically, many people thought that because the Court has held that government can constitutionally ban images of child sexual abuse it should also be able to ban images of animal abuse. In an opinion by Chief Justice Roberts, the Court rightly rejected this analogy, but the reasoning isn't self-evident, so I want to explain.

To begin with, it's important to understand that a basic principle of First Amendment doctrine is that an individual ordinarily does not have a constitutional right to do an act that is otherwise unlawful merely because he wants to engage in free expression. For example, an individual does not have a First Amendment right to speed on I-94 because he wants to make a movie involving speeding; he does not have a First Amendment right to steal a camera in order to make a video; and he does not have a First Amendment right to wiretap a telephone conversation in order to prove that a congressman has taken a bribe.

It is for this reason that Daniel Ellsberg, who stole the Pentagon Papers, could have been prosecuted for the theft. Similarly, this is why a person who wants to sexually abuse a child in order to make a movie about child sexual abuse has no First Amendment right to do so, and why an individual who wants to make a movie about dog-fighting has no First Amendment right to conduct an otherwise illegal dog-fight

This brings us, though, to a second basic principle of First Amendment doctrine: even though speech was produced by an unlawful act, the speech itself may not be restricted for that reason. In effect, the law separates the underlying illegality from the resulting speech. Thus, a person who makes a movie with a stolen camera can be punished for the theft, but the government cannot suppress the movie; a person who illegally wiretaps a telephone call in order to catch a congressman taking a bribe can be punished for the unlawful wiretap, but a newspaper that publishes the story or a television station that broadcasts the tape cannot be punished for doing so; and Daniel Ellsberg could be punished for stealing Pentagon Papers from the Defense Department, but the New York Times and the Washington Post could not constitutionally be prohibited from publishing them.

The underlying logic that connects these two principles is that if the government is truly concerned about the underlying illegality, it should punish it more severely, but it cannot forbid the speech.

These two principles may seem inconsistent, but they are designed to keep First Amendment doctrine relatively simple. The first principle under-protects free speech interests; the second principle over-protects free speech interests, in the hope that the two principles in combination will achieve a generally acceptable balance without having to put courts in the awkward position of deciding on a case-by-case basis whether the public interest in the speech is sufficiently great to justify a First Amendment right to violate the underlying law against speeding, wiretapping, theft, etc.

This, then, brings us to child pornography. In Ferber v. New York (1982) and Ashcroft v. Free Speech Coalition (2002), the Supreme Court held that the government could constitutionally prohibit not only the underlying crime of child sexual abuse, but also child pornography that depicts actual sexual abuse of a real child.

This is clearly an exception to the second principle. The Court struggled in these decisions to explain why child pornography should be exempt from the second principle. In Ashcroft, the Court made clear that non-obscene images of children engaged in sexual conduct cannot be prohibited if they do not involve sexual abuse of real children (for example, if they are made by computer simulation or the use of body-doubles).

Thus, the reason for allowing the government to prohibit the distribution of child pornography is to prevent the harm inflicted upon children who are forced to engage in actual sexual conduct in order to produce the expression. But why should this be an exception to the second principle? The Court explained that society has a uniquely "compelling" interest in preventing this harm to children.

In Stevens, the government argued that if it can forbid the distribution of images of real children engaged in unlawful sexual activity, it should also be able to forbid the distribution of images of real animals subjected to unlawful physical abuse. In both cases, the government wants to dry up the market for the images in order to eliminate the incentive to engage in child sexual abuse or animal cruelty in order to produce the images.

But, as the Court held in Stevens, this analogy doesn't work. Remember that child pornography is a unique exception to the second principle. The reason for the exception is that the government has a "compelling" interest in preventing the harm to the child. Does the government have a similarly "compelling" interest in preventing animal cruelty?

There are several obvious and important differences. First, we simply don't equate animal cruelty with child sexual abuse. Animals are different from people. Although we may abhor animal cruely, and although we often prohibit it, the two interests cannot be equated. Second, although we forbid child sexual abuse in all circumstances, we permit the mistreatment of animals in many situations. For example, although some people find it troubling, we permit hunting, we experiment on animals for medical reasons, and we slaughter tens of millions of animals annually for food. The allowance of such conduct clearly reveals that our society does not consider animal abuse on a par with child sexual abuse. Third, in the child pornography situation, the Court was very concerned about the continuing emotional and psychological harm to the child caused by the ongoing availability of the images of the child's sexual absue. But animals have no consciousness of the ongoing existence of the images, and therefore do not suffer any harm in this respect similar to that of the child.

For these reasons, the Court in Stevens rightly distinguished images of animal cruelty from images of child sexual abuse. The proper response of the government is to punish dog-fighting and other forms of animal abuse more severely, but not to prohibit speech that is otherwise protected by the First Amendment.