The Column, No. 58:

A Small Victory for Free Speech and the First Amendment

By Randy Wakeman


It is a small, but important victory for the First Amendment. Today, in an 8-1 decision by the Supreme Court, vacating what has been the law of the land in these United States for the last eleven long years, the “1999 Depiction of Animal Cruelty Act.” The case before the court was United States v. Stevens (08-769).

The law stated, “the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State . . . .“

Chief Justice Roberts noted that since hunting is illegal in Washington, D.C., the law would extend to “any magazine or video depicting lawful hunting, so long as that depiction is sold within the nation’s capital.” Roberts rejected pledges by the government that federal prosecutors would only enforce the statute against acts of what it viewed as “extreme cruelty.” “The First Amendment protects against the government; it does not leave us at the mercy of noblesse oblige,” Roberts wrote. “We would not uphold an unconstitutional statute merely because the government promised to use it reasonably.”

No kidding. What is bothersome about this law, the law than has been in force for eleven years, is that the law had nothing to do with the legality of the act itself. The shockingly disturbing part is that it is just a picture, piece of video, or sound recording that was criminalized. Words mean things and the words “animal” and “kill” are self-explanatory.

It is illegal to kill a black rat snake in Iowa. It is illegal to kill snakes in Colorado, Missouri, and Tennessee. Sell a picture of dead snake, under the law as written you could be facing Federal Charges of five years in prison. If your pet cat kills a bird, a bird that is unlawful to take, a picture of your cat proudly presenting his illegal prey to you could land you five years imprisonment. Bullfighting is illegal in the United States. Sell a travel book you have written of your trip to Spain or Mexico with a picture of a bullfight, perfectly legal and a celebrated event in these countries, you guessed it, five years of imprisonment. Even through the event is perfectly legal where you took the picture or recorded the sound, we would be relying on the “promise of federal prosecutors” that they would apply proper discretion of enforcing that law.

It is odd considering videotape and pictures of police actions (sometimes referred to as war) that contain intentional wounding and killing of humans are just fine. As for audio recordings, 911 calls recorded by government agencies are often played in mainstream media outlets. Yet, some 911 calls involve intentional, illegal wounding and sometimes killing not of animals, but of humans. Publishers of those phone calls are of course not committing the acts themselves, but mainstream media whether television, cable, or radio stations are for profit businesses.

All of this publishing whether radio, cable, or by YouTube may be considered worthy of five years imprisonment by the discretion of government. After all, for eleven years in the United States it has been “The Law” as written. The line between artistic expression and information of “intrinsic value” and is of course subjective. When our nation criminalizes not specific acts themselves, but the depiction of them freedom is invariably lost, and protections from government wither away.

I'm glad the Roberts court dealt with this in a clear way. We need to continue to elect individuals that have of a sense of protecting freedom of expression and speech from criminalization by a sprawling, shadowy government.




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