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Is Animal Cruelty Porn the same as Child Porn?

The SCOTUS heard arguments today in United States v. Stevens, the animal cruelty case.

The issue is whether or not depictions of animal cruelty are so worthless that, like child pornography, they are not protected by the first amendment.

The child porn case, found that the very creation of the material was itself a criminal act, its existence continued the harm to the child and perpetuated the practice of child abuse. Therefore, child porn was not worthy of first amendment protection. Basically, the court decided that the slight value of child porn was outweighed by the enormous harm it caused (in its creation and its distribution).

Congress aimed the animal cruelty statute at “Crush Videos.” The language of the statute is much broader than that. Stevens, for example, distributed a dog fighting video not a crush video. The court if it will strike the same balance as it did in Ferber and  if the statute is so broad that it sweeps in too much protected speech.

The justices seemed skeptical. Scalia suggested that this might be viewpoint discrimination. That is, a graphic video opposing dog fighting might be OK but not one that glorifies it. But, on the other hand, the court seemed to stump Stevens’ counsel when they asked if Congress could outlaw a “Human Sacrifice Channel.”

At the end, the court seems to have two choices: narrowly interpret the law to apply only to crush videos or strike the law down on its face. Stevens wins either way. I am not sure that the analogy between animal cruelty and child porn is strong enough. At the least, a child will know or could come to know that a record of his abuse is out there in the form of child porn, thus prolonging the harm. But it is not likely that an animal will be conscious of the existence of a video.

But what should Congress do about animal cruelty videos? Maybe the answer is nothing. The acts are illegal (at least in the United States) and states should enforce those laws instead of vainly trying to write a statute that prevents the human sacrifice channel but not legitimate first amendment expression.

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October 6, 2009   4,295 Comments