Wednesday, 28 April 2010


Both readers of my blog will be relieved that this post is about something other than sale of liquor. A very recent United States Supreme Court decision on their First Amendment (freedom of speech) in relation to the freedom to publish or distribute dog fighting DVDs and videos is worth noting. The court said, which summarises what the case was about:-

"The Court strikes down in its entirety a valuable statute, 18 U. S. C. §48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of“crush videos,” a form of depraved entertainment that has no social value. The Court’s approach, which has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted. Respondent was convicted under §48 for selling videos depicting dogfights. On appeal, he argued, among other things, that §48 is unconstitutional as applied to the facts of this case, and he highlighted features
of those videos that might distinguish them from otherdogfight videos brought to our attention."

The US Supreme Court in the majority decision (8-1) was largely concerned that the statute under which Mr Stevens was prosecuted was "overbroad" in its reach, and was therefore unconstitutional. They were aware of the unsavory nature of the relevant images and of the other images proscribed under the statute-something called crush videos, which I am not going to describe as it would sicken you). They said

"Our construction of §48 decides the constitutional ques-tion; the Government makes no effort to defend the consti-tutionality of §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particu-lar depictions are intrinsically related to criminal conductor are analogous to obscenity (if not themselves obscene),and that the ban on such speech is narrowly tailored toreinforce restrictions on the underlying conduct, preventadditional crime arising from the depictions, or safeguardpublic mores. But the Government nowhere attempts toextend these arguments to depictions of any other activities—depictions that are presumptively protected by the First Amendment but that remain subject to the criminal sanctions of §48. Nor does the Government seriously contest that thepresumptively impermissible applications of §48 (properly construed) far outnumber any permissible ones. However “growing” and “lucrative” the markets for crush videos anddogfighting depictions might be, see Brief for United States 43, 46 (internal quotation marks omitted), they aredwarfed by the market for other depictions, such as hunt-ing magazines and videos, that we have determined to bewithin the scope of §48. See supra, at 13–14. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, andtherefore invalid under the First Amendment."

The dissent is more interesting as they often are. Justice Alito would have upheld the conviction. He said in relation to the overbroad issue that

"In sum, we have a duty to interpret §48 so as to avoid serious constitutional concerns, and §48 may reasonably be construed not to reach almost all, if not all, of the depictions that the Court finds constitutionally protected. Thus, §48 does not appear to have a large number of un-constitutional applications. Invalidation for overbreadth is appropriate only if the challenged statute suffers from substantial overbreadth—judged not just in absolute terms, but in relation to the statute’s “plainly legitimate sweep.” "

He compared the contested depictions with child pornography and distinguished hunting videos and depictions of tail docking and other accepted animal treatment. He went on to say:-

"The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct,even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct. The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos. In addition, as noted above, Congress was presented with compelling evidence that the only way of preventing these crimes was to target the sale of the videos. Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue."

He then makes a value judgment which I find unusual where he says that:-

"It must be acknowledged that §48 differs from a child pornography law in an important respect: preventing theabuse of children is certainly much more important than preventing the torture of the animals used in crush videos. It was largely for this reason that the Court of Appeals concluded that Ferber did not support the constitutionalityof §48. 533 F. 3d, at 228 (“Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm”). But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos."

Is this in the same category as those questions like, was Hitler worse than Stalin? Philosophers such as Professor Peter Singer may not agree with a ranking of such vileness, and I am not sure that they need to be ranked at all.

No comments: