In 1999, Congress attempted to ban animal cruelty by prohibiting the conscious creation, sale, or depiction of animal cruelty with foreign or commercial gain as the objective. Congress was most concerned about “crush videos,” in which women wearing high heels, or no shoes at all will afflict pain upon animals with their feet. The “crush videos” appealed to a narrow group of individuals with very specific sexual obsessions. However, the law instated 18 U.S.C. §48 , covers all depictions of animal cruelty as long as original behavior is already illegal in the state where the creation, sale or possession occurs.
In the 2005 case, United States v. Stevens, Robert Stevens was convicted on three different counts of intentionally selling portrayals of animal cruelty in his sale of video footage of organized pit bull dog fights and hunting expeditions. Stevens had not been a part of the filming but had edited the tapes and added his own narration and advertising design for the films.
The US Supreme Court overturned Stevens’ conviction, arguing the ruling was unconstitutional as it was centered in prohibiting the substance of protected speech. The court deemed that although “the cause of animal protection is to our sensibilities,” it is not a compelling governmental interest in regards to free speech. The court offers three reasons as to why “preventing cruelty to animals” should be a compelling governmental interest "that trumps an individual’s free speech rights"(US v Stevens). As the Government recognizes, Congress and the states already have in place comprehensive statutory schemes to protect animals from mistreatment. Considering the three rationales presented by the court, §48 fails the test of strict scrutiny – it has no compelling reason to regulate or punish the speech and it is not customized to narrowly achieve said interest.
The major doctrinal grounding that was discussed within US v Stevens was New York v Ferber. The court originally held that the restricted speech under §48 is technically protected under the First Amendment. The Court argues that only one established class of unprotected speech, even somewhat similar to that prohibited by §48 is child pornography. New York v Ferber instigated a number of conversations and considerations in determining whether or not to create an entirely new category of unprotected speech stemming from animal cruelty. Yet again, the Court emphasized that despite the emotional appeal to prevent cruelty against animals, within the court there was no compelling evidence as to the governmental interest involved.
Another court case used, was within the governments argument. The government attempted to use the 1942 case Chaplinsky v Newhampshire as the foundational argument to create a new category of speech that would not be protected under the First Amendment. Chaplinsky v New Hampshire established that the court would test the value of the original speech against its social costs (worthwhile vs. worthless). Zechariah Chafee, Professor of Law at Harvard University recognizes two types of expression as identified in Chaplinsky v New Hampshire specifically, “that which serves an individual interest…and that which serves a more general social interest” (435, Tedford & Herbeck). Chafee believed the individual interest was important, albeit, should not be as heavily weighted as speech concerning the social interest. Chaffee recommends maximum protection for “worthwhile” speech that serves the social interest. On the other hand, “worthless” speech is punishable as it has no “constructive role for such expression in a free society’s debate over ideas” (436, Tedford & Herbeck).
Steven’s argues in his response to the government that using the “balance” as established in Chaplinsky v. New Hampshire diverges from the basic text of the First Amendment and previously established case law. As exemplified by the documentaries about dog fighting and slaughterhouses, along with literature concerning Spanish bullfights, §48 clearly covers protected speech. Another strong line of reasoning Stevens presents is in relation to briefs filed by animal rights groups who use similar images of animal brutality within their advocacy campaigns.
I believe after closely examining both arguments that I would uphold the decision of Congress. I do not believe there is any reason at this point to create an entirely new category of unprotected speech as in New York v. Ferber. In this case I would apply the harm theory, established by John Stuart Mill, exemplified in the landmark case of Brandenburg v. Ohio, which established an incitement standard which I would also apply when referring to US v Stevens.
Clarence Brandenburg was a leader in an Ohio chapter of the Ku Klux Klan. Brandenburg was recorded threatening violent acts against the president, Congress and the Supreme Court. The Supreme Court overruled the district court’s sentence affirming there must be a differentiation between the advocacy of ideas and the advocacy of illegal actions. The court determined the government was required to prove that the danger presented by a speaker was in fact real, not exaggerated or invented. Brandenburg v. Ohio went beyond the previous standard of measure of clear and present danger, to create an incitement standard, in which provocation of illegal action is both, likely to occur and will transpire immediately (67, Tedford & Herbeck).
We witness the opposite end of the spectrum from Zechariah Chaffee in Brandenburg v Ohio, in which we see the ideals of C. Edwin Baker reach fruition. Baker developed an argument for free speech based on self-fulfillment and participation in change, the liberty theory. These two values support the rights and autonomy of the individual. The liberty theory maintains that free speech does not protect a marketplace of ideas, but “an arena of individual liberty from certain types of governmental restrictions” (441, Tedford & Herbeck). Baker argued free persons should not allow speech to be defined for them; rather they should create their own definition. The liberty model protects most speech, except for violent or coercive expression which causes actual harm, or that which constitutes fraud, perjury, blackmail, espionage, or treason (442, Tedford & Herbeck).
As Stevens himself was not involved in any act of violence or creating a harmful environment for animals, he was merely narrating a film I believe he is proteted.