Animal cruelty video is repugnant, but free speech protected

Free speech won another round this week. The U.S. Supreme Court struck down as constitutionally overbroad a law criminalizing depictions of animal cruelty.

There must be a distinction between an act so vile that it warrants criminal penalties and the ability of people to argue about the act and whether it should be criminalized. I see nothing wrong in prosecuting football players for engaging in dogfighting, but prosecuting the person who creates a video of the dogfighting for the purpose of arguing that it should be legal — or illegal for that matter — is an abridgment of free speech.

Under the law — which prohibits video “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” — it is conceivable the acolytes of PETA could be prosecuted for their gut-wrenching videos showing chicken and cattle slaughter, game hunting and the clubbing of baby seals. Those are strong arguments for their stance and should not be prohibited.

Conceivably, nature films showing predators and the prey could be caught in the law’s net.

Underlying the rationale of the law is that the depiction is tantamount to the crime. Then Hollywood would be banned from producing movies showing murder, rape, drug use, mayhem, robbery, etc.

People should be allowed to argue for the enactment of laws and for their repeal, using all the tools of free speech available. Otherwise, it would have been illegal to argue for the repeal of Prohibition.

Why, it would be illegal to argue that the draft is unconstitutional under the 13th Amendment ban on involuntary servitude. (Oh yeah, Justice Holmes already did that, saying that was like falsely shouting fire in theater.)

The one exception to this argument is, as the court pointed out in its ruling, child pornography, which is “intrinsically related” to the underlying abuse.

As an attorney argued before the court this past fall in this case, the government should not be allowed to put its “censorial thumb on the scale of public debate.”

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