Free Speech and Cruelty to Animals

i January 12, 2009

It has been said that the enshrinement of free speech and press in the First Amendment gives those civil liberties a “preferred position” in the constitutional pantheon because they make possible all other rights of Americans.

Although the “preferred position” notion has never commanded a majority decision of the Supreme Court of the United States, still, First Amendment rights have long been considered of paramount importance even though several exceptions have been carved into them by the Supreme Court of the United States. For example, so-called “fighting words,” obscenity and defamation are unprotected. “Commercial speech,” is sometimes protected, sometimes unprotected.

Not often do constitutional rights of free speech or religion clash in the Supreme Court of the United States with those of animal rights. They did, however, in the case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, Florida, 508 U.S. 520 (1993). The case involved an ordinance of the City of Hialeah, Florida, which prohibited the Santeria cult from sacrificing animals as part of its barbaric “religious” ceremony. (Professor Henry Mark Holzer, ISAR’s chairman, in behalf of ISAR and eleven other animal protection organizations filed amicus curiae (friend-of-the-court) briefs in the Supreme Court in support of the City of Hialeah. For copies of both briefs, CLICK HERE.)

The Hialeah Court unanimously (9-0) ruled the ordinance unconstitutional, as an infringement of the Santerians freedom of religion.Now, another case is headed for the Supreme Court which also raises First Amendment (speech) and animal rights (cruelty) issues.

A 1999 federal law made it a crime to “create, sell, or possess” depictions of illegal cruelty to animals, especially so-called “crush videos,” the nature of which I leave to the reader’s imagination.

It’s important to understand that the law did not criminalize the illegal cruelty itself, which was and is a crime under the laws of all fifty states. It criminalized, in essence, dissemination of the depictions of illegal cruelty. To the extent that dissemination of videos, DVDs, movies, books, magazines and other graphic materials are exercises of speech (and often press) rights, the federal felony statute seemingly created another exception to First Amendment protections.

A legal search of the home of a Virginia man, Robert J. Stevens, turned up three videos depicting illegal cruelty to animals which were introduced, narrated and commented on by him, together with accompanying printed material of which he was the author.

Stevens was indicted on three counts of violating the statute, convicted, and sentenced to 37 months in prison and three years of supervised release.

On appeal, the United States Court of Appeals for the Third Circuit (in a 10-3 vote) ruled the law to be an unconstitutional abridgment of Steven’s First Amendment right of free speech, and threw out his conviction.

The court majority’s decision turned on whether the First Amendment’s free speech guaranty was outweighed by the federal government’s interest in prohibiting dissemination of depictions of illegal animal cruelty. As the dissenting three judges wrote:

The majority today declares that that the Government can have no compelling interest in protecting animals from intentional and wanton acts of physical harm, and in doing so invalidates as unconstitutional a federal statute targeting the distribution and trafficking of depictions of these senseless acts of animal cruelty. Because we cannot agree, in light of the overwhelming body of law across the nation aimed at eradicating animal abuse, that the Government’s interest in ensuring the humane treatment of animals is anything less than of paramount importance, and because we conclude that the speech prohibited by [the statute] to be of such minimal redeeming social value that its restriction may be affected consistent with the First Amendment, we respectfully dissent.

Thus, what separated the majority and the dissent—what separated the statute’s unconstitutionality from its constitutionality—was application of the test employed by the Supreme Court of the United States when “fundamental rights” such as free speech are restricted by legislation: does the law serve a “compelling government interest and, if it does, is the law “narrowly tailored” to achieve the sought goal? If it does and is, the law will be upheld; if not, not.

United States v. Stevens is headed for the Supreme Court of the United States, the government having filed a Petition for Writ of Certiorari on December 15, 2008.

It is common knowledge that few cases seeking Supreme Court review obtain it. Less well known is that the government’s score card is between fifty and seventy percent, odds which substantially increase when a federal court of appeals has held a federal statute unconstitutional.

If the Court grants review, International Society for Animal Rights will seek permission to submit an amicus curiae (“Friend-of-the-Court”) brief. If permission to file ISAR’s brief is granted, it will be prepared by our chairman, Henry Mark Holzer, Professor Emeritus at Brooklyn Law School.ISAR’s position will be that, accepting as law of the land the Court’s “compelling interest/narrowly tailored” test, the federal statute declared unconstitutional by the Third Circuit in the Stevens case satisfied those requirements.

While the Solicitor General representing the United States (and doubtless various amici curiae) will appropriately focus on the government interest in prohibiting the dissemination of depiction of cruelty to animals per se, ISAR’s brief will address the philosophic and moral premises for animal rights, making arguments which are at the foundation for the anti-cruelty laws’ very existence.

ISAR extends an invitation to other animal protection organizations to join our brief, per the following procedure:

When a draft of ISAR’s brief is ready, it will be posted on our website.

Organizations interested in joining the brief, at no cost to themselves, will be able to do so by downloading a pdf letter of agreement, having it executed by the proper party, and returning it to ISAR. (There will be no negotiation as to the brief’s contents.)