Archive for the ‘Plessy v. Ferguson’ tag
The Constitutionality of Cruelty
“Crush Films” at the U.S. Supreme Court
The Supreme Court agreed on Monday to hear the government’s appeal of a Third Circuit decision which struck down a 1999 federal law aimed at curbing videos depicting disturbing scenes of animal cruelty. In 1999, Congress enacted 18 U.S.C. § 48 aimed at ending the disturbing rise in the sale of “crush films” which, according to the legislative history, depict “women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”
Specifically, the legislation prohibits interstate commerce of depictions of animal cruelty, which is defined as the intentional maiming, mutilating, torture, wounding or killing of a living animal, but only if the conduct depicted would be a violation of state or federal law where the recording was created or distributed. Furthermore, there is an exception for material with serious religious, political, scientific, educational, journalistic, historical, or artistic value.
Robert Stevens was convicted of three violations of § 48 and was sentenced to 37 months in prison. Stevens’ conviction arose from his advertisement of three videos in Sporting Dog Journal, an underground publication featuring articles on illegal dog fighting: “Pick-A-Winna,” “Japan Pit Fights,” and “Catch Dogs.” The first showed footage from dog fights in the U.S. in the 1960s and 70s, the second showed more recent dog fights from Japan, and the last one showed pit bulls attacking wild boar and domesticated hogs.
Stevens challenged his conviction, claiming that § 48 violated his First Amendment right to free speech. In striking down § 48, the Third Circuit reasoned that “No matter how appealing the cause of animal protection is to our sensibilities, we hesitate—in the First Amendment context—to elevate it to the status of a compelling interest.” Put another way, the rights of people who sell animal snuff videos trumps society’s interest in preventing deliberate and malicious torture.
Echoes of Injustice, Past and Present
In law school, students are taught to “think like lawyers,” which, in many respects, means learning to analyze facts based on linear rules passed down by learned judges. A student commits these rules to memory and then, during exams, demonstrates his or her learning by applying these rules to specific facts so as to produce a result. In other words, we distill reality down to variables, plug these variables into equations and, voila, the outcome is supposed to be justice.
Unfortunately, as history teaches, the result is often far from just. Sometimes it is necessary to get out of the confines of this quasi-scientific approach to justice and take a good hard look at where it is taking us. Now is such a time.
The underlying rationale of the Third Circuit’s Stevens opinion pits the rights of animals to be free from cruel treatment against the rights of U.S. citizens to free speech. This sounds eerily familiar to another recent match-up, namely, the torture of non-U.S. citizens versus the security of U.S. interests. In both cases, juxtaposition of supposedly competing values ignores the fundamental reality of the situation: just as the torturing of a human being demeans the humanity of all human beings, so does the torture of a defenseless animal demean the value of all life. Ignoring these moral realities does more to undermine our national security and the rule of law in our society than would the harms we’re theoretically guarding against.
The myopic and warped views of the Third Circuit—and supporters of torture—are reminiscent of the backward reasoning the Supreme Court used in upholding segregation laws in Plessy v. Ferguson. In that decision—now universally condemned—, the Court said that if “the enforced separation of the two races stamps the colored race with a badge of inferiority … it is not by reason of anything found in the [segregation law], but solely because the colored race chooses to put that construction upon it.” Put another way, the Supreme Court told African-Americans that the insult of segregation was in their heads.
Today we read this passage with disbelief, the same disbelief that will, in the not too distant future, accompany a reading of the Third Circuit’s Stevens opinion.
Perhaps some readers will choose to be offended by my comparison of the lines we draw between groups of people and the lines we draw between people and animals. I would urge such people to consider the timeline of history and to see that the treatment of human beings and the treatment of animals follow the same trajectory. Recall, for instance, that both Christians and animals were maimed, tortured and slaughtered for entertainment in the Coliseum. The reality is that racism and speciesim are but two prongs of the same mistake. And discounting the suffering of other beings—be they human or non-human—is an error that we are, in fits and starts, overcoming.
Obscenely Disturbing
The First Amendment does not protect obscenity, which the Supreme Court has defined as something that appeals to the prurient interest, which is devoid of scientific, political, educational, or social value, and violates local community standards. In case “prurient” isn’t a word in your lexicon, it means “marked by, arousing or appealing to sexual desire.” In other words, if Robert J. Stevens’ videos had shown dogs mauling one another in the midst of an orgy of consenting adults, he might be in prison today. What does it say about our society that we rate the evils of sexual arousal well beyond those of profiting from and encouraging the torture of animals? It says it’s time to update our legal equations. I hope the Supreme Court agrees.
A human being is part of the whole, called by us ‘universe,’ a part limited in time and space. He experiences himself, his thoughts and feelings, as something separate from the rest—a kind of optical delusion of consciousness. This delusion is a kind of prison for us, restricting us to our personal desires and to affection for a few persons nearest to us. Our task must be to free ourselves from this prison by widening our circle of compassion to embrace all living creatures and the whole of nature in its beauty.
—Albert Einstein
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Following her graduation from Boalt Hall in 1999, M. Renée Orth practiced business litigation in California with emphasis on employment, real estate and banking law. She now focuses on philanthropic efforts while indulging her passions for vegetarian cooking and traveling.
