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Animal Protection v. Free Speech
The Supreme Court ponders protecting dog-fighting videos.
The Supreme Court considers whether the right to depict dog-fighting is protected under the First Amendment.

In the movie The Contender, a female nominee for vice-president explains her unwillingness to defend herself against false accusations this way: “Principles only mean something when you stick to them when it is inconvenient.” Her comment resonates with the larger notion that the First Amendment embodies several core principles, not the least of which expresses our profound respect for the freedom to speak, or refrain from speaking, one’s mind.

As an animal law attorney, my mental image of the free speech right is a patchwork of vivid scenes: an observer in the back of a courtroom gallery hissing out spite about a mentally ill defendant’s neglect of his sick horse; a witness’s tearful recrimination that her friend lied about the pet’s purchase; an activist’s irrational diatribe that I should suffer the same as a client’s livestock; a vet’s gleeful phone message to me promising to kill a client’s cat should the spay bill not be paid by noon. None of these words were easy to hear, or productive, or very informative, or noble in any sense—yet all were protected and given their own intrinsic value by the First Amendment.

I say all this as a preface to United States v. Stevens, which heads to decision soon in the U.S. Supreme Court. The forthcoming decision will start by considering a defendant’s conviction for selling dog-fighting videos under a criminal statute prohibiting creating, selling or possessing “depictions of animal cruelty.” Importantly, the Stevens case brings nothing new to light regarding the criminalization of acts of animal cruelty. The trouble stems from the tension between criminalizing someone “depicting” an act of cruelty and our overarching desire to protect speech without judging its content. The tension exists because the free speech right is not absolute: Our courts have often held certain depictions are not protected under the First Amendment, most notably and problematically obscenity, and courts have recognized that some bad acts include the act of speaking, such as the false cry of “fire!” causing panic in a theater.

Consider the innumerable dog-lovers who wish grave ill to people who “create, sell, or possess” dog-fighting videos and will proudly proclaim this opinion on websites, in e-mail forums, editorials, and, of course, blogs. There is no question that their right to so proclaim is protected by the First Amendment. But the hammer that strikes at the video producer, seller or purchaser lands sufficiently close to the critics’ pens and keyboards to jostle them as they write and type. Laws that make the production or possession of some words and images criminal can raise real fears about restrictions on closely related words and images: If videos of dog-fighting are prohibited, what about promotional brochures about videos of dog-fighting, and if those, what about editorials lauding them, online blogs analyzing them, or trial transcripts explaining them? As goes the topic of dog-fighting, whither goes topics of deer hunting, bass fishing, turtle racing and horse racing. Shudder to think, just how “criminal” are The Planet’s Funniest Animals videos?

“Principles only mean something when you stick to them when it is inconvenient.” It is nearly impossible to recognize any principle involved in actually making dogs fight for one’s entertainment, but it is not that difficult to recognize serious principles involved in possessing, or viewing, or reading about images of dogs fighting for entertainment, not the least of which includes the innate human drive to observe and understand all that goes on in the world and hope for some insight into its complexity. It is uncomfortable, outrageous, ridiculous and downright horrible to watch dogs fighting or to even know that others do. But how much more or less uncomfortable, outrageous, ridiculous or downright horrible is government censorship?

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Geordie Duckler, JD, PhD, heads the Animal Law Practice, a unique private law practice in Portland, Ore., whose main focus is on the resolution, litigation and trial of animal-related disputes.

animallawpractice.com

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Submitted by S.Regina | April 27 2009 |

Geordie has his values right. Abhorrent as dog fighting is, it is far worse to threaten the right of free speech. But surely there is a way to fight dog fighting videos for entertainment successfully , in a way that won't bring the first amendment issue into the case. I bet this creative attorney will think up one...animal abuse?child abuse? (if they are available to children to watch..it is said that many criminals have a history of abusing animals as children, and that involvement with animal abuse is an indicator of emotional disorder.

Submitted by Kathy Konetzka-Close | April 28 2009 |

While I understand the author's viewpoint in this post, I respectfully disagree. Child pornographers are not protected under our First amendment--if you are caught disseminating, selling, or sharing that kind of material, you are prosecuted for doing so. Snuff films that show someone being tortured/murdered are also not allowed to be sold or shared. Why is dog fighting any different? If the activity is illegal, then anyone involved even remotely with trafficking in films or videos showing an illegal activity should be prosecuted to the fullest extent of the law. I also do not fully buy into the "slippery slope" argument; we as a society should be able to distinguish between true illegal activity and that which is used in documentaries designed to educate or replicated in films designed to entertain. Murder is certainly illegal and yet, how many plays/movies are produced each year protraying violent death as the main plotline and no one is prosecuted for that? Rights covered under our Constitution need to be reviewed, revised, and sometimes, redefined; that's not something we should be afraid of. It's what protects us all.

Submitted by D McPharan | October 7 2009 |

This is outrageous. I would much rather have so-called "free speech" threatened than give these monsters an opportunity to profit from this ignorant, cruel, Medieval practice. I'm a very liberal person overall, but come on. Enough is enough. ANY torture or mistreatment of ANY creature, filmed and being distributed for entertainment is sick and wrong. I would appreciate it if our government would get its priorities straight. Free speech vs. horrific suffering? No contest.

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