Issue 111, Winter 2009/2010

By Joan E. Bertin

Every state in the nation makes it a crime to abuse animals. In 1999, Congress decided that wasn’t enough and created a new crime – taking or possessing a picture of animal cruelty.

The constitutionality of that law is now before the U.S. Supreme Court in U.S. v. Stevens, a case that is being touted as a showdown between animal rights and free speech.  It shouldn’t be.  After all, many who believe deeply in free speech rights also love animals, and we think we can protect both animals and our constitutional rights.

We don’t need this law. There is no evidence that it will be more effective in preventing animal cruelty than enforcement of existing laws criminalizing it. Michael Vick’s conviction for his involvement in dogfighting operations shows that such laws can work.

Congress’s stated intent was to target “crush videos,” but the law prohibits far more. Stevens’ case involves pictures of dogfights that were legal where they were filmed, but would not be legal here.  On that theory, anyone could go to jail for owning a film showing bullfighting in Spain, fox hunting in England, or cockfights in Mexico.

What about advocates for animal rights who make their case showing  shocking images of animal cruelty? Or the artist whose work contains images of animal slaughter that force the viewer to think about the fact that we condemn animal cruelty but sanction the killing of animals for food and sport? Are they subject to criminal prosecution?

Congress did not intend to criminalize all images of animal cruelty. Only those images that lack “serious value” are subject to criminal penalties. But this doesn’t solve the problem, because someone still has to decide which images meet that test and which don’t. Under the statute, it would be up to a jury to decide whether a given image has “serious value.”

That is a scary prospect.  Many works of art that are now considered great were reviled when first produced. Manet’s Olympia and Matisse’s Blue Nude are examples. Goya narrowly escaped the Inquisition for his painting Los Caprichos. How is a jury to judge artistic merit, when artists and art critics themselves cannot agree, and contemporary judgments are notoriously flawed?

More importantly, the Constitution is supposed to protect us from those kinds of the judgments.  Your right to make or own an image should not depend on whether someone else likes it or thinks it has “serious value.” If the First Amendment does not allow us to decide for ourselves what books, pictures, and ideas have “serious value,” it will cease to serve its most fundamental and valuable function – protecting individual thought against group-think.