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Tuesday, April 20, 2010

Cruel And Unusual

by digby

I am a big animal welfare advocate so I am disgusted that any human being would take pleasure in the suffering of animals or consider it entertainment. As a child I had nightmares for years after seeing a trained bear in a third world country. It's a horrible image that remains in my head today. But I also think the first amendment is pretty sacrosanct and that prohibiting things purely on the basis of the depiction of awful acts on film or in literature, rather than the awful acts themselves, is very, very problematic.

So, I can't reasonably argue with today's Supreme Court decision to overturn the ban on videos of animal cruelty on the merits. What I don't get is this logic from Justice Roberts:

He acknowledged that some sorts of speech — among them obscenity, defamation, fraud, incitement and speech integral to criminal conduct — have historically been considered outside the protection of the First Amendment. But he rejected the government’s analogy to a more recent category of unprotected speech, that trafficking in child pornography, which the court in 1982 said deserved no First Amendment protection.

Child pornography, he said, is “a special case” because the market for it is “intrinsically related to the underlying abuse.”

But videos of animal cruelty aren't intrinsically related to the underlying abuse? That makes no sense. Roberts argues that the law prevents depictions of hunting:

Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.

“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders or magnitude,” he wrote.

But the fact is that the laws against child pornography have far more often been used for absurd purposes than any arrests of someone for buying the latest copy of Hunting and Fishing Magazine. Just this week we had this:

Three Greensburg Salem students who allegedly sent nude or semi-nude photographs of themselves via their cell phones and three male students who received the photos are facing pornography charges.

Greensburg police have filed petitions with Westmoreland County juvenile authorities charging the three high school girls with manufacturing, disseminating or possessing child pornography. Three high school boys found with the photos on their cell phones are charged with possession of child pornography, police said Monday.

Police said more charges are possible because they believe the photos may have gone to others.

Media reports across the nation have documented the teen trend of sending nude or semi-nude photos from cell phone to cell phone, called "sexting" instead of "texting."

Westmoreland County District Attorney John Peck said minors can be charged with sending or possessing child pornography, despite their age.

I'm not arguing for child pornography. But this is clearly not what the law intended. Yet, Roberts seems to think this child pornography exception to the first amendment is reasonable while the one depicting animal cruelty would not be. It's intellectually inconsistent. Of course First Amendment jurisprudence always has been inconsistent so there's no surprise. But to mention two extremely similar cases in the same breath and come up a completely different rationale for each seems particularly capricious to me.

Of course, John Roberts also believes that non-human corporate entities have more free speech rights than teenagers who write the words "bong hits for jesus," so capricious
probably isn't the right word for it.