Three Reasons Animal Rights Activists Should Support the Supreme Court's Decision on Dog-Fighting Videos
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Will Potter, Green Is the New Red
April 2010

The Supreme Court has struck down a federal law targeting “depictions of animal cruelty,” including dog-fighting and “crush” videos. And that’s a very good thing for the animal rights movement.

That might sound incongruous, at best, and heretical, at worst, to animal rights activists. Many people who care about animals have treated the ruling as a defeat, an attack on their attempts to protect animals from being tortured in the name of entertainment. However, the ruling in US v. Stevens is an important one for animal rights activists for three reasons:

1. Similar legislation could undoubtedly have been used against supporters of the Animal Liberation Front, Earth Liberation Front, and direct action. Proponents of the legislation, 18 U.S.C. 48, argued that the animal cruelty depicted in such videos is illegal, and it has “minimum redeeming value.” To be clear, I am not taking issue with either point. This conduct should be illegal, and it has no more redeeming value, in my opinion, than child pornography. However, the legislation itself is too broad and too vague. Denying First Amendment rights based on whether the media depicts illegal conduct with a “redeeming value” is incredibly dangerous. As the court said, it reflects an “alarming breadth.” These are standards that could easily be tweaked to apply to the publications of animal rights activists themselves.

Within the animal rights and environmental movements there are publications that support property destruction and direct action. Magazines such as No Compromise, Bite Back, and the Earth First Journal support illegal tactics and sometimes include “how-to” style columns. There have also been full-length films and activist campaign videos that unabashedly support direct action, and clearly urge others to do the same. (The trailer above is a good example, as are the videos in the campaign to shut down Huntingdon Life Sciences).

I have no doubt that the same industry groups who have sponsored “eco-terrorism” legislation would seek to use a similar rational to defend their attacks on publications like Bite Back or films like Behind the Mask. Does that sound far-fetched? Well, “eco-terrorism” legislation out of Washington State proposed exactly that.

2. Similar legislation could be used to target depictions of animal cruelty produced by activists themselves. This may seem like another overly-worrisome claim. But if you have been following the tactics of industry groups, it is clear that they are willing to use any and all tools at their disposal, including distorting existing laws, to attack even the most mainstream organizations.

For examples, see these two articles:

The mob law was never intended to target animal rights activists protesting the circus, and this law was never intended to target undercover investigations by animal rights activists, but in the hands of well-funded corporate industry groups and ambitious prosecutors, vague legislation can be exploited.

What was even more worrisome about this case is that the government defended this fluidity. “Whether a given category of speech enjoys First Amendment protection,” the government argued, “depends upon a categorical balancing of the value of the speech against its societal costs.”

Chief Justice Roberts rebuked the Obama administration for that, and rightly so: “As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.”

3. The court made clear that Congress can’t simply say, “Trust us, we’re the government.” The court focused much of its arguments on the scope of the legislation, and how it has, and will be, applied. The government responded to concerns about over breadth by promising to only prosecute “extreme cruelty.”

In this ruling, the Supreme Court unequivocally rejected those promises.

“The First Amendment protects against the government; it does not leave us at the mercy of noblesse oblige,” Roberts wrote.

“We would not uphold an unconstitutional statute merely because the government promised to use it reasonably.” [emphasis added]

Similar questions are at the heart of opposition to the Animal Enterprise Terrorism Act, legislation so broad it is being used to target activists for chalking slogans on public streets.

When I testified before Congress against the AETA, I argued that it was vague and overly broad, and therefore must be rejected on Constitutional grounds. In response, supporters included a provision that says nothing in the law shall be construed “to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment.”

This ruling is an important one because it makes incredibly clear that the government’s promises, whether only to prosecute depictions of “extreme cruelty” or only to prosecute those who support “extreme” activism, are meaningless.

Some activists have incorrectly portrayed the Supreme Court as ruling that animal cruelty is protected speech. Far from it. The court did not challenge the intent of this legislation, or its value. It simply said that this particular approach, this particular legislation, was too vague and too broad.

To put it another way, this ruling is not about supporting these despicable videos, it is about not prohibiting others. And that’s a sentiment which will ultimately benefit supporters of both mainstream and “radical” animal rights activism.

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