[Ed. Note: Also read Supreme Court says Fetish Videos Depicting Animal Cruelty Deserve Free Speech Protections.]
By Matthew Liebman, ALDF
(Animal Legal Defense Fund) Staff Attorney
A holding from the highest court in the land that animal protection is less than compelling could have been devastating. But the Court did not go that route, despite the clear opportunity to do so.
In light of recent comments, questions, and Facebook posts, I thought I’d take a moment to clarify some misconceptions about the Supreme Court’s opinion in United States v. Stevens. I appreciate and sympathize with the anger many people feel about the decision, and I wish the Court’s decision had gone the other way. But I think we owe it to ourselves to avoid feeling anger and despair unnecessarily. And misreading the Stevens case causes unnecessary despair. The real plight of animals is horrific enough without subjecting ourselves to the added stress that results from an alarmist description of the Stevens case. It’s important to honestly assess the case and what it did and did not actually say.
First, the Supreme Court did not hold that committing animal cruelty is protected by the First Amendment.
Criminal animal cruelty was illegal before Stevens and it remains illegal after Stevens. The case had almost nothing to do with the legitimacy and enforceability of the local, state, and federal laws that protect animals. Rather, the case focused solely on the government’s ability to prohibit the depictions of cruelty themselves. Someone who abuses animals cannot avoid criminal liability simply by videotaping that cruelty. For example, dogfighters who videotape fights can still be prosecuted under the criminal cruelty laws for dogfighting, even though they can no longer be prosecuted for selling the videos, at least for now. Undoubtedly, Section 48 was an important tool for stopping animal cruelty that was produced for the sole purpose of being sold, and the Court took away that tool. But it did not equate animal cruelty itself with free speech.
Second, the Supreme Court did not hold that crush videos or animal fighting videos are protected by the First Amendment.
Instead, the Court specifically reserved that question, holding only that Section 48 as written was too broad and extended to other kinds of speech that are protected. A law that criminalized the commercial creation, sale, or possession of just crush videos or animal fighting videos might still pass constitutional muster, and it is clear that that is the way forward for the animal protection movement. The Animal Legal Defense Fund and other animal protection groups are urging Congress to pass a narrower law that focuses on these extreme forms of animal cruelty.
Third, the Court did not say that preventing animal cruelty is an unimportant goal.
The Court could have held that the prevention of animal cruelty is not a compelling government interest, throwing the legitimacy of hundreds of animal protection laws into doubt. In fact, that’s what some of us feared would happen, especially after the lower court based its decision in part on those grounds. A holding from the highest court in the land that animal protection is less than compelling could have been devastating. But the Court did not go that route, despite the clear opportunity to do so.
My point is not that we aren’t entitled to feel upset or disappointed by the Stevens decision. We are. But we shouldn’t burden ourselves with an unduly pessimistic view of the state of animal law. I see Stevens as a setback, but it’s also an important marker of how far we have come: not only did we win a vote from Justice Alito, but we also convinced the other eight Justices to leave open the possibility that a more fine-tuned law could be constitutional.