April 20, 2009

Is there a free speech right to sell and to own graphic videos of dogs fighting?

Congress made it a crime, and the Third Circuit said it violated the First Amendment. Today, the Supreme Court took cert.
In nullifying the law, the Circuit Court refused to create a new exception to the First Amendment to apply to portrayals of animal cruelty. It noted that the Supreme Court “last declared an entire category of speech unprotected” by the Amendment in 1982 (in New York v. Ferber, involving child pornography). The Circuit Court rejected a government argument that the depiction of animal cruelty was analogous to the depiction of child pornography.

[T]he Justice Department argued that the 1999 law is narrow in scope, applying only to a “particularly harmful class of speech,” only when that is done for commercial gain, and only when the particular depiction has “no serious societal value.”
Protected speech?

53 comments:

Revenant said...

I think it is protected speech, yes. Selling footage of adult human beings mauling each other is protected speech, isn't it?

peprgirl said...

Yes I believe its protected speech...

But we have learned that harming an animal in this day and age is worse than killing a human.

If Michael Vick had been in the FightClub business or even Bum Fighting no one would have cared.

tim maguire said...

Creating the video may be animal cruelty, but no animals were harmed in the possession of the video once created. It's hard to see the public interest in banning possession.

I could go either way on original distribution since the initial act of distributing is closely tied to the creation. The counter argument is that the original distributor is already implicated in the creation and so an additional law against distribution is unnecessary for conviction.

Joe M. said...

If UFC is protected, surely this is?

Revenant said...

Actually, the Bumfights guys were prosecuted, although I forget what for.

Peter V. Bella said...

"Bum Fighting no one would have cared."

Bums are pretty tough. Vick was a pampered non-entity. Bums would have made micnemeat out of him.

Revenant said...

Creating the video may be animal cruelty,

Was it really, though? The act of raising a fighting dog involves a great deal of cruelty. But the fights themselves are just true to the dogs' nature. Letting two dogs fight is no more cruel than letting a dog chase down and kill a rabbit, it seems to me.

PJ said...

I'm sure my pocket Living Constitution is out of date, but it says here that "Congress shall make no law . . .." I would think that would result in First Amendment protection as against Congress, whatever may be the situation concerning state legislation like that at issue in Ferber. So I say: Protected speech.

Bissage said...

It is surely a crime to sell and to own graphic videos of dogs tearing apart animal pornographers.

This is yet more proof that life is not fair.

rhhardin said...

If you read Adam's Task by Vicki Hearne on the subject of Pit Bull fighting, the facts are mixed.

They're mixed because the dogs like it. Finding a worthy opponent is the highest calling, to their way of judging it.

On the other hand, enjoying watching isn't so admirable; and people used to try to break up dog fights. Thurber describes the scene of a dog fight breaking out in the street, in ``A Snapshot of Rex''

``Look Inside'' Hearne above and search for ``negro,'' and start back one page.

pp199-200.

It's called gameness.

So the actual animal cruelty part may be idle projection, not that that would ever in a million years break through the media story.

That instinct is what makes it easy to create the videos, I'd say; which is why it might not generalize into videos in general as a social problem.

Cedarford said...

A big leap from the voluntary ASPCA "no animals were harmed in the making of this media production."

Now I can see a ban on commercial blood sports media products, and perhaps the dog fighting would come under that - but not a blanket law on everyone filming animal fights or predation in the wild that would be construed as "entertainment". National Geographic would be affected by that standard! Because people would rather see the Wildebeast snatched by a 19-foot Nile croc or battling another Wildebeast in rut than watch a wildebeast on the savannah chewing it's curdany day.

We also have a "slippery slope". Groups like PETA claim that video of little Timmy catching a "helpless fish" or 17-year old Ashley shooting ducks with her Dad is no different than "other blood sport".

This is one that the Courts will have to watch. We live in a time when the regulations and restrictions on Americans are coming fast and furious. So fast and furious that people are beginning to believe that their essential liberties are being lost. And may fight back.

As the excrable Koh or Yale Law School said, paraphrasing - to make us a better nation and get the Euros and 3rd Worlders to like us more - curtailments in 1st Amendment rights are perhaps appropriate..
I think most Americans disagree with his saying we must look to international law to force our own laws to change .....
to be-more-like-them.

___________________

Like in Arizona, where contributions from two companies that do "camera surveillance of motorist for revenue enhancement" seduced several cities into huge new "monitoring&ticketing" programs for free money for things they wanted to spend on.

Photo-Radar Van Driver
Shot to Death
Rage against cameras taken to another
level
Last Edited: Monday, 20 Apr 2009, 11:07 AM MDT
Created On: Sunday, 19 Apr 2009, 10:45 PM MDT

PHOENIX - As a result of a joint investigation conducted by the Phoenix Police Department and the Arizona Department of Public safety, a suspect is in custody in this case.

A joint Phoenix Police and Arizona DPS press briefing will be held Monday afternoon.

This is a developing story - scroll down for more information.

A man operating a state police photo radar unit was shot to death while parked in his vehicle along a stretch of a north Phoenix freeway.

The shooting occurred just before 9 p.m. Sunday on the Loop 101 and 7th Avenue.

The victim, 51-year-old Doug Georgianni, had worked for three months for RedFlex Traffic Systems Inc. The company has a contract with the Arizona Department of Public Safety to operate photo
enforcement vehicles on state highways.

Department of Public Safety's Lt. Jim Warriner says "It's unconscionable to think..that someone's that mad at a photo radar...to take shots - what's it going to solve?"
To answer the Head Cop Flunky spokesman Warriner, violence solves quite a few things. Certain things the masses find growingly unacceptable, imposed on them as minorities or majorities - by Elites that don't listen to them...finally reach a violent phase. They do when nothing else saying "back off!" works. Not "tea parties", not fighting Courts diktats that bypass The People, not trying to reclaim legislators already bought up by lobbies and powerful interests.

Right now in AZ, the guy that finally capped one of the RedFlex employee contractors dishing out tens of thousands in new 100+ dollar ticket fines - is warmly regarded in some quarters.

Jeremy said...

"Creating the video may be animal cruelty."

I personally think it is because I don't think the animals would otherwise be involved in the fighting.

I've owned many dogs and the only time I've ever seen them become aggressive or literally fight is when they are either cornered and feel they have no means of escape or being attacked.

Even the pit bulls mentioned would not automatically "seek out" other dogs to fight...not without a human being putting them up to it.

Jeremy said...

Speaking of animals (or cruelty), do people here think the horses in Florida were intentionally killed?

I do.

traditionalguy said...

The only punishment given to Dog Fight sponsors and their fans should be forcing them to fight inside a Cage with a pack of pit bulls, winner take all. There would be no second offenses. Waterboarding is reserved for cat abusers only.

tim maguire said...

Revnant--that's a valid point. But animals can't give informed consent and there are theories that aggressiveness in dogs is a fear response, rather than an actual desire to fight.

KLDAVIS said...

Isn't every aspect of this commercial in nature? Why can't it be regulated in the same ways commercial speech is regulated?

"tim maguire said...
but no animals were harmed in the possession of the video once created. It's hard to see the public interest in banning possession."

The argument would be that banning possession/sale prevents the next video from ever being made.

rhhardin said...

Everything you know about Pit Bulls is wrong.

The stink was a fund raising scheme in the 80s for HSUS and a boon for the media.

traditionalguy said...

Yes...Yes...Yes. It is free speech. How else will we know who these monsters are? Let them speak, and then prosecute them for the crimes on the books now.

Eli Blake said...

Note that the Supreme Court did not in any way prevent people from prosecuting the people who MAKE the videos(!)

It only said that you can't ban its sale or possession.

And that is a reasonable interpretation (and not without precedent-- recall that some years ago the government outlawed the creation of so-called 'crush' videos which depicted women killing mice and other small animals, generally by stomping them to death.) That law, which was well enough written that it stood up to court challenges, aimed not at people who owned the videos but rather at those who produced them.

Maybe the answer is to go back to work and enhance the penalty for dog fighting in the first place.

Eli Blake said...
This comment has been removed by the author.
Eli Blake said...

Cedarford,

A COLD-BLOODED MURDERER is 'warmly regarded in some quarters?' Not by THIS Arizonan!

I'm not a fan of photo radar (too much opportunity for someone to collect data that violates your privacy) and I can understand (though not condone) the man who took a pickax to a photo radar machine a couple of months ago, but I refuse to accept that there is ANY justification at all for walking up to someone and shooting them dead.

I suppose you think Dale Hausner was doing people a favor too, getting all those pesky pedestrians out of the way of drivers.

Jason (the commenter) said...

Look at all the teenagers who have had their lives ruined because of sexting (thank you Supreme Court). I sure hope I have a free speech right to graphic dog fighting. Now people will be prosecuted if they take or sell pictures of their dog's fighting? I just saw a movie at the theater yesterday where a guy was unnecessarily giving electric shocks to his dog (Crank 2). I can only imagine how many movies contain scenes of someone doing something mean to a dog, or a dog fighting. They would all have to be thrown away.

Why stop at cruelty to animals, why not outlaw depiction of ANY crime? Ridiculous!

tim maguire said...

KLDAVIS, I was thinking about that and my opinion--in the narrow sense used here it also goes for child pornography--is that legalizing distribution expands the secondary market, making the primary market less vital.

That is, and this is just a thought, but it is logically valid, banning sale and possession restricts the movement of goods already created, thereby creating a greater need for original programming.

Revenant said...

Even the pit bulls mentioned would not automatically "seek out" other dogs to fight...not without a human being putting them up to it.

I'm pretty sure that's incorrect. Most normal dogs don't do that, true, but my understanding is that fighting dogs are bred and trained for aggression and violence. Those kinds of dogs WILL attack and maul other dogs -- or humans, for that matter -- without provocation.

That's what I meant when I said that the act of training the fighting dog might be cruel, but letting it fight isn't. Fighting is what it wants to do; it is the canine equivalent of a psychotic killer.

Sofa King said...

Creating the video may be animal crueltyWhat is the rational basis for laws against animal cruelty in the first place? Now that morals alone is insufficient as a rational basis. In what tangible way does the public benefit from these laws?

bagoh20 said...

"Even the pit bulls mentioned would not automatically "seek out" other dogs to fight...not without a human being putting them up to it."I do dog rescue every day and mostly pit bulls. This is not true. Dogs often attack without good reason. They simply are reacting to perceived threats and their perception of who is a threat is very inaccurate. This is dependent on each individual dog's makeup and experience. Their overuse of the attack response is very similar to blog commenters.

Richard Fagin said...
This comment has been removed by the author.
Cedarford said...

Eli -

When nothing else works, when the courts and legislators are captured to do the agenda of unaccountable elites - people have always resorted to violent rebellion. Sometimes starting with individuals that reach their limit, ending up in groups that change society, sometimes for the better, through violent protest.

It is a quite natural human phenomenon, and the exortation that "NOTHING ever justifies killing a human being engaged in repression!!" isn't listened to, too closely, in troubled land after troubled land. Be they tax agents of the Czar, "contract agents" enforcing laws directed against the masses against their will.

If employees of private companies think they can make money by performing highly unpopular actions, regulation, or levying taxes and fines against the general citizenry under the color of government authority - they have to factor in a risk of violence into their wishes to expand their business.

Certainly the RedFlex employees now out in dozens of trucks nailing citizens for hefty fines aren't laughing at angry motorists they are targeting today - knowing they can be targeted in turn. Add into the equation each of them must deal with "the more people I screw the more money I make under my traffic violator ticket bonus clause" - the adder: "and the more likely I am to get punched out or worse."

Richard Fagin said...

If possessing or distributing images of child pornography is not protected speech, how can images of dog fighting be protected speech, except perhaps that the underlying criminal conduct for the latter is considered less offensive. The rationale for finding the former to be unprotected by the First Amendment is that it faciltiates or encourages the underlying conduct. Is this really any different for dog fighting?

Oligonicella said...

bagoh20 said...

"Their overuse of the attack response is very similar to blog commenters.

Priceless. I have had my dog attacked for merely walking down the street with me. Fortunately, Sam was 85lb. Dogs will attack for reasons other than fear. Sometimes, like people, they're just mean.


Richard Fagin --

"Is this really any different for dog fighting?"

Yes. Human - animal.

rhhardin said...

I understand an interest in fighting is a general terrier trait. Pit bulls just happen to be phyiscally pretty solid dogs in addition and so are a convenient devil in the news.

The terrier fighting instinct isn't fear. It's interest.

A fear reaction would be if he bit you, which is not the case here. It's another dog that's got his interest.

There are simple ways to show the dog that no fighting is a rule, so it's not as if the dog is a problem if he likes fighting. (Just like no chewing the sofa is a rule, no matter how much you want to, and it's not considered remarkable.)

Gameness otherwise is a very positive trait.

Revenant said...

If possessing or distributing images of child pornography is not protected speech, how can images of dog fighting be protected speech, except perhaps that the underlying criminal conduct for the latter is considered less offensive.

The vast difference in offensiveness is part of it, but another part is that banning dog fight videos is unlikely to make a serious dent in dog fighting. Dog fighting is mainly undertaken for gambling purposes rather than for entertainment. There isn't a vast market for watching dogs tear each other apart. There is a large demand for child pornography.

Eli Blake said...

Cedarford:

The courts are made up of people chosen by ELECTED officians (or in some cases elected themselves.) We also have a government made up of ELECTED officials.

What 'unaccountable elites'? If there are 'elites' that suggests a relatively small number. In other words, not enough to win an election by themselves.

Sorry if your guys lost, but deal with it. If you don't like the way we do things in America (which does NOT include violent revolution) then there is no shortage of places in the world where policy decisions are made by people who have murdered their way to the top.

And as far as nothing ever justifies murder, I stand by what I said. This was no 'patriotic' act, it was a cowardly murder, very likely against an unarmed individual.

I refuse to consider the dirtbag who did this anything other than a cowardly murderer.

And I don't know that much about RedFlex (it is perhaps telling that they have yet to issue even so much as a press release about this, if you go their website it is all about sales) but I doubt if their employees ever 'laugh' at you. They do their job.

As for the argument that people who enforce laws are 'agents of the Czar' who else do you include in that list? The police? federal agents? You are sounding distubingly like Timothy McVeigh or Eric Robert Rudolf (if people like that deserve anything other than the label of 'murderer' it is 'terrorist.')

Violence will solve nothing.

Pogo said...

I think posters of dogs playing poker is cruelty, although not to the animals.

Eowyn said...

Cedarford--

Seriously? You're going to stand up for some lunatic who walked up and shot another person dead for doing nothing but his (legal, if offensive) job?

Seriously?

I chuckled at the guy with the pickax (not that he should have done that, either), but once you take the pickax/rock/knife/gun to a person instead of a piece of equipment, you've crossed the line from kinda funny and defensible to utterly indefensible, save perhaps by an insanity plea. This idiot took the life of another human being, and brought tragedy and heartbreak into the lives of who knows how many others, over traffic lights. He's nothing but scum (unless he's sick), deserves no admiration whatsoever, and certainly no defense from anyone except his lawyer.

Eowyn said...

As for the dog-fighting videos-- surely the making of them is illegal (per Michael Vick)? Or at least it seems like it would make you an accessory-- I dunno, Althouse is the law prof. I can maybe even see selling the videos as illegal if some of the profits are going back to the dogs' owners or the video makers.

But I can't see making the OWNING of the video illegal. Too many things are illegal already, and if this becomes illegal, it will become a precedent for something else.

Who the crap buys something like that anyhow??

traditionalguy said...

As I recall the dogs are always undressed. So just see how many dogs in these videos are under 18 and prosecute for Attempted Child Pornography. That probably is wrong, but who knows what an Apellate Court will fall for these days.

AlphaLiberal said...

Well, how about "snuff videos" where they film killings? Sure, the killing is a crime, but not profiting from it?

Seems analogous. . .

Seven Machos said...

The dogfighters will no doubt win. So we'll have strippers and dogfighters with protected speech. And child pornographers and people who want to influence elections without it.

Kind of an odd result, isn't it?

Revenant said...

Well, how about "snuff videos" where they film killings? Sure, the killing is a crime, but not profiting from it?

Snuff videos don't actually exist. But footage of people being murdered can be, and is, sold for profit on a regular basis. An obvious example is documentaries on the Holocaust, many of which feature graphic footage of the murder of death camp inmates.

Cedarford said...

Eowyn - Seriously? You're going to stand up for some lunatic who walked up and shot another person dead for doing nothing but his (legal, if offensive) job?

Seriously?
I'm not condoning it. I am saying that, as unaccountable to The People, Elites, impose more and more onerous control on citizens who have no other recourse for their grievances, this is a natural historical response.

We have been fairly prosperous and cosseted, and even in past economic hard times...

But shooting innocent functionaries who engage in repression - while those functionaries are perfectly legal in "just doing their job"?

Well, yes, tax and rent colectors were strung up in Revolutionary France and plenty of other places in plenty of other times. John Brown killed innocent slave owners doing perfectly legal slave-owning.

Jefferson said that when tyrants growingly oppress and restrict Liberty, the "tree of Liberty" best be refreshed with the blood of tyrants.

We are not in a position of "mass violent protest" yet,but we see signs of it gathering. Violent movements usually start with the actions of a few, that society either finds wanting, or sympathize with, or sympathize with but say the time and repression and loss of liberties is not bad enough..Or the loss of democracy is not truly reached a point of rebellion..Despite Americans losing half their saved wealth to Elite blunders and straight-out malfeasance..and in a high state of anger, insecurity, and fear.

Wait until it is not hundreds of private "traffic fine revenue generators" fanning out on state streets - but carbon taxes favored by Elites doubling or tripling electric bills and pushing all goods higher while enriching a few.

It always starts with the John Browns or small groups of starving French peasant rabble easily cut down by cavalry..And only time will tell if small scale recorse to violence gets bigger or dies out.

Eli Blake said...

Cedarford:

carbon taxes favored by Elites doubling or tripling electric bills and pushing all goods higher while enriching a fewYou're paranoid. If you want to save on energy costs then go buy some of the new bulbs. I've been buying them for three years now and I've yet to have even one of them burn out. I also like my electric bill.

Plus, if people became as made as you claim, our system provides a way to remedy the situation: elect somebody else. If you can't wait until election day then you can even organize a recall, if there is enough support then you can win it.

People who advocate for violent revolution in a democracy are people who know deep down that their views are too extreme ever to garner the support of a majority in an election.

Joe said...

I personally think it is because I don't think the animals would otherwise be involved in the fighting.Perhaps not those specific animals, but that's a technicality without meaning--many animals fight, that is their nature. I have two damn cats that hang around outside my townhouse that go to town on each other every few weeks. I'm amazed their still both alive. When I was a kid, my neighbor had a dachshund who saw it as his mission to attack and attempt to kill all humans (my own cat was satisfied in simply killing any wildlife it fancied and it killed quite a bit--he eventually badly lost a fight to a cat who decided to take over.)

Pogo said...

" elect somebody else"

ha ha ha.
Good one Eli.

See, now that over half of the population gets gummint money from the less-than-half left paying federal taxes, well, that can never happen.

Other people's money is just too powerful a drug.

just as FDR thought would occur, and the Founders well knew.
Nope.
That just ain't possible anymore.

Revenant said...

Plus, if people became as made as you claim, our system provides a way to remedy the situation: elect somebody else.

Considering that the (unelected) Judicial Branch ruled that the (unelected) EPA is obligated to reduce carbon dioxide emissions despite the fact that neither the (elected) Congress which passed the law nor the (elected) President who signed it wanted the EPA to regulate carbon dioxide emissions, I'm at a loss to see how voting is going to solve the problem. After all, voting didn't cause it. The EPA will be regulating CO2 not because voters ever wanted it to, but because that mandate was dictated to the American public by our betters.

David said...

I read the majority opinion and the dissent. A rapid reading.

Interestingly, I found the dissent the more persuasive opinion. Perhaps that was because the dissent was much better written and more concise than the majority opinion, which is kind of a mess.

The majority ruled in favor of overturning the statute in large part because it concluded that there was no compelling government interest in restricting the depiction of animal cruelty. At base this determination seemed rooted in a distinction of animal cruelty from child pornography, which was a precedent cited by the government in arguing that the statute should be upheld.

The dissent pointed out that every state had a law criminalizing animal cruelty and that such laws go deep into the nation's history. Essentially the dissent was saying that where there is such a broad legislative consensus that animal cruelty is a societal ill, the court should not separately conclude that the government lacks a compelling interest in the subject.

Compelling interest alone does not justify a restriction on speech. The dissent then went through the rest of the analysis, concluding that the nature and quality of the restrictions were permissible under the child pornography and other precedents.

It's a much more interesting case than appears on the face of the press summary. Even though I found the dissent more persuasive on a first read, I haven't really reached a conclusion of how I think it should be decided, and I sure as hell have no idea how it will be decided.

I wonder if this case could have implications for restrictions on the internet?

KLDAVIS said...

tim maguire said...
"...legalizing distribution expands the secondary market, making the primary market less vital...banning sale and possession...creat[es] a greater need for original programming."

I think that is obviously true with regards to some types of contraband, CP most assuredly. However, I believe the heavy gambling aspect associated with dog fighting acts against that type of analysis. Unless dog fighting really gets some people off, I don't think you're going to see the response you suggest.

Peter V. Bella said...

In the United Soviet Socialist Republic of Chicago, they want to ban pit bulls to sopt dog fighting and supposedly prevent maulings; our corru. er I mean beloved Aldercreatures seem to think that pit bulls are the only "violent" dogs.

Now they want to pass an ordinance to force all dog owners to neuter their dogs; whether they want to or not. This is to prevent supposedly agressive behavior.

I wish they would pass an ordinance to ban and neuter themselves.

knox said...
This comment has been removed by the author.
rhhardin said...

Dick Koehler testifying about neutering to reduce aggression: ``Oh I don't think that will help. It hasn't done me any good at all.''

Bandit look inside p.235.

Mitch said...

Violence will solve nothingThats an intellectually and historically ridiculous assertion

• Violence solved Hitler
• Violence solved Japanese militarism in WW2
• Violence solved secession (for now) in the War of Northern Aggression
• Violence made the USA possible
• Violence freed the Iraqis from Saddam and his psychopath sons
• Violence - and the threat of violence - stops societal predators every day
• From Stalin's POV, violence solved the problem of subversives
• From Pol Pot's POV violence solved the problem of intellectuals
• From Mao's POV, violence solved the problem of those undermining his revolution
• From Castro's POV, violence enabled the "People's Revolution" in Cuba

Shall I go on?

Now having said that, the shooting of that fellow was horrific (the police have taken into custody the man they believe committed the crime). Now, had he committed "violence" against the cameras with a baseball bat and stuck around to reap the consequences...

Emily Carson said...

Violence solved secession (for now) in the War of Northern AggressionSomething must bring out the real nutcaes on this board.

Mitch said...

Violence solved secession (for now) in the War of Northern AggressionSomething must bring out the real nutcaes on this board.I'll take the nutcase comment as a compliment. Given that the South didn't want to take over the North or run the USA, the war was hardly a "Civil War" in any sense of the term or historical accuracy.