In its irresistible march toward the deification of the First Amendment, the U.S. Supreme Court has again decided in favor of free speech absolutism. (And it’s not like I don’t care about free speech). In United States v Stevens the Court ruled that a federal law criminalizing the commercial production, sale, or possession of so-called crush videos was an unconstitutional abridgment of the First Amendment right to freedom of speech. The movies in question are depictions of cruelty to animals, used to satisfy a particular “sexual fetish”. They feature the intentional torture and killing of helpless animals, often by women wearing high-heeled shoes who slowly crush animals to death while talking to them in a dominatrix voice (source).
Let’s assume that cruelty to animals is universally considered a crime. If we can agree on that, we can – I think – also agree that filming a crime and distributing the movie is not, by definition, a crime in itself. On the contrary, it can help solve the crime. Think of the Rodney King video for example. However, if a crime is filmed, and the makers of the film fail to notify the authorities, then they can be considered as accomplices or guilty of criminal neglect. The crime then is the failure to notify the cops, not the act of making a video. The video itself should not be banned or criminalized, only the failure to report a crime.
But we can go one step further. In the case of crush videos, the video of animal cruelty is not contingent to the act of cruelty itself. In other words, the act of cruelty – the crime – would not have taken place had it not been filmed. The precise purpose of the act of cruelty is its videotaping and the subsequent sale of the videotaped cruelty. There would have been no crime had it not been filmed. So, we can reasonably assume that the act of cruelty, the filming of it, and the distribution of the film are in fact one and the same act. It’s therefore wrong to claim that we are dealing here with a simple case of free speech. The speech part of the act – distributing the film – is inseparable from the other parts of the act – cruelty and filming. If you care about the enforcement of anti-cruelty laws, you should make the distribution of such movies illegal and carve out an exception to free speech. If, on the contrary, you allow the distribution, then you provoke, condone or at least accept the existence of cruelty. In the words of Alito – dissenting:
criminal acts … cannot be prevented without targeting … the creation, sale, and possession for sale of depictions of animal torture.
If you enforce anti-cruelty laws, you de facto limit freedom of speech. So, either you take an absolutist position on free speech and you have to allow animal cruelty and violation of the law, or you don’t want to allow that and then you can’t take an absolutist position.
Anyway, free speech absolutism isn’t a widely held position, not even in the Supreme Court. Many kinds of speech have historically been granted no constitutional protection by the Court (“well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem”):
- defamation and libel
- fighting words
- child pornography
- speech integral to criminal conduct and
- solicitation of crime.
However, in this case, the Supreme Court was not inclined to add an exception for another type of speech, even though the harms caused by animal cruelty perhaps outweigh those caused by obscenity for instance. This disinclination is even less understandable when you consider that in United States v Stevens, Justice Roberts – for the majority – cited the older rationale for prohibiting child pornography, namely that it’s a special case because the market for it is intrinsically related to the underlying abuse. How is the same rationale not applicable in the case of animal cruelty? It seems to me that both child pornography and depictions of animal cruelty fall within the Court’s longstanding jurisprudence that “speech or writing used as an integral part of conduct in violation of a valid criminal statute” (source) is a valid exception to the general rule of freedom of speech.