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.
The article implies the court decision was in part due to public opinion that does not equate the mis-treatment of animals with the mistreatment of children then makes the bold conclusion - "animals are just different". The phrase "animals are different" is conclusory and arbitrary. It is also no reason at all. I am unaware that constitutional law uses this as a basis for any decision. It is the argument of a child or an idiot. Imagine if we used this reasoning to justify slavery?
Popular opinion is not a consideration of constitutional interpretation. The fundamentals historically have been to guard against and protect the weak and disenfranchised from popular opinion. We are a nation of laws not of men. Child abuse, animal abuse, filming those things are much the same. Certainly, one is free to conclude children are more important than animals. This only means it is a value. This does not make it logical reasoning. I like ice cream. I like ice cream more than children. Many people do. That is a value also. It is not a legal argument. It does not justify protecting ice cream instead of children. How about protecting both?
http://www.salon.com/news/opinion/glenn_greenwald/
Anybody but her for the Supreme Court.
Second, although I support the exploitation of animals for food or medical research no more than I support it for the production of fetish videos, there is (perhaps) a distinction in that the purpose of these videos is for people to see and enjoy the suffering of animals. Although killing an animal for food causes suffering, the suffering itself is not the goal, as it is in these videos.
That leaves the third argument, that the existence of child pornography will cause emotional harm to the victims. While it is true that animals are not aware of the existence of these videos, we don't allow child pornography to be sold whether or not the particular children are aware of it, so this doesn't always apply.
There is no good reason that videos of animal abuse should be placed in a separate category from child pornography. If we make an exception to our general interpretation of the First Amendment for one, we ought to make the same exception for the other.
The court didn't say that male dogs are fair game but female dogs aren't. Surely you can appreciate that there is a greater difference between cats people than between men and women.
No one suggests that ANY difference between two beings justifies differential treatment under the law. The principle you're trying to apply exists nowhere but in your post.
Not every package of cigarettes will be sold to minors, yet we still ban the sale of cigarettes to minors even though the potential harm doesn't "always apply".
Your argumentation is so weak as to be utterly inconsequential.
Nothing "always applies".
Moreover, I think brianthevegan's point is that the "continuing harm" argument used to justify the differentiation in treatment/protections is mostly a poor argument. Child porn is illegal and not openly for sale. This is true because the law says so. Why cannot the law also say "no abuse of animal films" Sufficient harm is already committed when the abuse occurrs. It does not require an additional justification of "continual harm". It isn't as if some child will continue to see his abuse film played on t.v. or at the local theater. Why would it matter any way? Preventing the abuse is sufficient enough to justify the restriction on behavior. Hence, the abuse an animal suffers should be sufficient on it's own merits and not compared to children. Once they carved out an exception for children, they opened the door to exceptions for all.
I'd put it to you that in Canada, in reference to both cases, that making criminal a drawing or crassly written story depicting a dog fight is only not illegal due to what must be an oversight.