Animal Rights

As I began the readings for this weeks discussion of unprotected speech in terms of the dynamics involving the criminalization of images depicting animal cruelty I was deeply disturbed. As a loving pet owner of many years, I quickly decided that in order to create effective change, I would have to strike down the law that Congress passed in 1999 in its attempt to protect pets via images of cruelty, and create a new law that would include all the provision of the 1999 law, but would also criminalize the possession and non-commercial distribution of imagery that lacks positive relationships with our nations pets.

I had never before heard about or seen crush videos so perhaps this was an indicator that the1999 law congress passed had created a positive impact in the lack of distribution and knowledge of such videos depicting animal cruelty. Yet, the lack of consequences and criminalization for those who watch and distribute these videos, at times with no intentions of generating commercial value should change. The current Congressional law does not criminalize the possession of images depicting animal cruelty or non-commercial distribution, and this is deeply problematic.

It is quite perplexing to understand why it was that Congress did not make all viewing and distribution of animal torture illegal when it was closely modeled after child pornography laws. This is because prior to 1999, in the case of New York v. Ferber of 1982, it was deemed illegal to create, possess or distribute child pornographic media. Yet, currently in accordance to the ruling by the Third Circuit for the U.S. Court of Appeals, the decision to protect the defendant Robert Stevens was upheld by refusing to accept the analogy of child pornography (New York v. Ferber) in which the government was found to have a compelling interest in protecting children from exploitation. The analogy to Osborne v. Ohio in which the government was found to have a compelling interest not only in protecting children but also in suppressing the commercial demand for sexual images of children was also rejected. Thus, the current decision by the U.S. Court of Appeals opposes my plea to criminalize those who have animal cruelty media in possession and who distribute them willingly without monetary gain. Yet, my plea could become a reality if the Supreme Court decides to insist that a new law be drafted, where in addition to current provisions of the 1999 law, depictions and non-commercial distribution of animal harm would be treated in the same way as depictions and non-commercial distribution of sexual conduct by children.

I have mentioned that such acts of animal manipulation and cruelty is deeply disturbing to me and that the passing of the 1999 Law of Congress is a start to develop a more holistic measure to protect animal rights. Depictions and non-commercial distribution of animal cruelty should be banned under the harm theory of bad tendency. Depictions of animal cruelty are themselves evidence of actual harm, yet extension this harm theory provides reason to believe that the screening and distribution of animal cruelty media can lead to additional positional harm to animals and humans alike, yet the government can substantially decrease or put an end to all of the suffering. Estimates are that there are 75 million dogs and 90 million cats living in households in the United States. These pets are companions and family members. Evidence of this is apparent in 1997 Boston Northeastern University study that found 70% of all animal abusers had committed at least one other crime and that 40% had committed violent crimes against humans. Studies also found that a history of animal abuse was found in 25% of male criminals, 30% of convicted child molesters, 36% of domestic cases and 46% of homicide cases. Additionally, 30% of convicted child molesters and 48% of convicted rapists admitted to animal cruelty in their childhood. If media of animal cruelty is not criminalized, it creates easier access to young children via the Internet. Such cruel acts can easily be repeated by media examples, and justified among our youth because they were accessible online legally. This is detrimental to our society, because it creates a cycle of continued abuse for both animals and humans alike. In terms of the overbreath issue, which argues that the law as written may encompass too much speech that should remain protected and places an undue burden on speakers to show that their protected speech should not be punished, I would place strict measures in international depictions of animal cruelty brought to the United States. Speakers know the laws of the nation, and should not seek a loophole that would allow them to show and distribute images like dog fighting, which are legal in Japan inside the United States. In terms of the burden of speakers, legal in season hunting in our nation, would not be persecuted, even if depicted and distributed. This would not be against the law, yet close regulations of this should be allowed, especially if videos are circulated in great amounts and commercial values are placed on them.


The 3rd circuit judges dissenting on the case of United States v. Stevens, U.S. 3rd Circuit Court of Appeals provide support for my previous statement in regards to the analogy of child pornography and depictions of animal cruelty. They discuss the advertising and selling of child pornography as economic motives for the production of child pornography. The value they say, of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest. They cite four parts that detail how the depictions of animal cruelty implicate these same interests. The first part calls attention to government interest in preventing animal abuse, just like protecting the interests of minors. The second part details the unprotected form of speech in child pornography because of the lasting record of child abuse and the obstacles of ensuring enforcements in the “low profile clandestine industry. They discuss the long-term abuse that animals suffer – such as dogs’ depicting in dog fighting media. Also, crush videos not only detail the abuse of animal, but also the end of an animal’s life. The third part deals with the advertising and distribution of child pornography in the same way that images of animal cruelty are. In the final fourth part, the dissenting justices state that child pornography, like depictions of animal abuse are not considered to be an important or necessary part of scientific, literary or educations works, and in the off-chance that such was necessary, they could simply be simulated. Therefore they say that there is simply no potential that the present statue will reach any work that plans an important role in the world of ideas.

In addition, the dissenting judges in this case concerning defendant Stevens cite a past case, Chaplinsky vs. New Hampshire relevant to this discussion. In Chaplinsky, the Supreme Court defined protections regarding free speech and first amendment rights. The speech in question regarded the prevention and punishment of words labeled lewd and obscene, and insulting or “fighting,” words. These words were argued to inflict injury or tend to incite and immediate breach of peace. Such speech is said to have no significant impact in ideas and of low social value in the search for truth. Nevertheless the dissenting judges believe that Chaplinsky is of extreme importance to the Stevens case. They believe that the expansiveness of the particular exceptions at issues does not detract from the integrity of a constitution principle. This principle states that certain speech may be categorically unprotected under the first amendment – like images of animal cruelty. The judges also state that for speech to be unprotected, at a bare minimum, its value must be plainly outweighed by the Government’s asserted interest. They believe the speech in the Stevens case regarding images of animal cruelty does indeed share these features and should be unprotected under the first amendment.

In reference to my application of the harm theory of bad tendency discussed above, and in comparison to the imminent incitement approach, I would still apply images of animal abuse under the harm theory of bad tendency. This is because linking action to images of animal abuse would be more difficult under the incitement test under Brandenburg. This test states that, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Therefore, this test ensures that all viewing of animal abuse will incite criminal activity in realms of animal cruelty, yet it has been cited that the viewing of images regarding animal cruelty has different audiences. While it is true that some audiences tune in to media regarding animal cruelty to repeat the abuse, some audiences only tune in for sexual gratification and others for commercial gain.

I believe the philosophy of Zechariah Chafee to be applicable to the issues of animal cruelty. Chafee believed that speech should be divided into worthwhile and worthless categories. According to Chafee worthwhile speech about government matter received almost absolute protection while worthless speech about private concerns received far less protection. Chafee once said, “The great interest in free speech should be sacrificed only when the interest in public safety is really impaired.” In accordance to the statistics outlined below, the child cruelty to animals and cycle of violence to both animals and human is indeed a public safety interest, and the government should therefore apply intermediate scrutiny. The 1999 law of Congress should be challenged to include the criminalization of possession of animal cruelty media as well as the distribution of such media without any interest in monetary gain.