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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?