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The First Amendment and Cockfight Videos:

Adam Liptak at the New York Times reports:

A company that broadcasts cockfights on the Internet filed suit in federal court in Miami on Tuesday to challenge a largely untested federal law that makes it a crime to sell depictions of animal cruelty.

The owners of a Web site that shows cockfights says that though cockfighting is illegal in most states, it is legal in Puerto Rico, where the Web casts are from....

The constitutionality of the same law is at issue in a case before the federal appeals court in Philadelphia, in which a Virginia man was sentenced to three years in prison for selling videotapes of dog fights....

The relevant statute, 18 U.S.C. § 48, criminalizes (a) "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce," though with an exception for (b) "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."

"[D]epiction of animal cruelty" is defined in (c) to include "any visual or auditory depiction ... 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 [jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the [jurisdiction]." This means that it's a federal crime to distribute videos of cockfighting in, say, California (assuming the depictions lack "serious ... value") even if the cockfighting was legal in the place (Puerto Rico) in which the video was created.

The statute was enacted as an attempt to stop the distribution of so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens; and it does indeed seem to cover such videos, assuming the relevant state law bars the underlying conduct (often yes as to killing kittens, often no as to killing insects). Don't ask me why people would want to watch this stuff, but apparently some get their jollies this way.

But on its face, the statute would also punish:

  • A TV program showing foreign bullfights, which might be legal in the country in which they're taken, but illegal in at least some states in which the program is shown.

  • A magazine with photographs of people illegally killing endangered species in a foreign country.

  • A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).

The drafters of the statute might not have wanted to punish this sort of material, but clause (a) does indeed cover it. Clause (b) might well exempt such material, but that depends entirely on how judges and juries interpret "serious religious, political, scientific, educational, journalistic, historical, or artistic value." One can certainly argue that all the above has such serious value, but at least as to the first item and maybe as to the others, some factfinders might conclude otherwise — the test is quite subjective, and some jurors or judges might well say "this bullfighting scene has no serious value; it's just aimed to shock, titillate, and get ratings."

Note also an important difference between this clause and the third prong of the obscenity test, from which the clause is borrowed: clause (b) doesn't say that the work has to be judged "taken as a whole." This means the "serious value" exemption under this law may well be a smaller safe harbor than the "serious value" exemption under obscenity law.

The statute doesn't fit within the existing obscenity or incitement exceptions. President Clinton's signing statement tried to cabin the statute by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex"; that at least brings it closer to the obscenity exception, though not entirely within it. But the signing statement isn't part of the law, and is certainly not binding on later administrations.

The real question is whether the child pornography exception — the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created — should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

  1. production of cruelty videos can be done in secret, but the distribution has to be relatively public;

  2. a ban on production will thus be very hard to enforce;

  3. so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,

  4. to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

  1. The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.

  2. The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.

  3. The harm that the distribution of this speech causes — indirectly furthering animal cruelty — is much less severe than the harm of indirectly furthering sexual exploitation of children. (The legal system itself embodies such a judgment — child sexual abuse is a very serious crime, generally punished much more severely than animal cruelty. Cockfighting, in particular, is not even a crime in Puerto Rico, though Congress could have outlawed it if it wanted to. For more on when and whether it's legitimate for courts to draw such crime severity lines as a constitutional matter, see Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004).)

This also illustrates how the "slippery slope" can work in a legal system that's built on precedent and analogy. Crush video laws have indeed been advocated by their supporters as analogous to child pornography bans; and while courts might well draw the line between the two, perhaps on the grounds that child sexual abuse is just much more harmful than crush videos, the analogy seemed to be at least helpful in persuading legislatures to enact the laws.

Some might embrace the slippery slope here, if they think that cruelty videos should be banned. Some who disagree about cruelty videos nonetheless might accept the slippery slope risk, on the theory that child pornography is so harmful that we should have an exception for it even if there's some risk that the exception will spread further than one would like. (That's my view.) But one shouldn't pretend that the slippery slope risk doesn't exist.

UPDATE: Here's the Complaint in the lawsuit that seeks to have the law stricken down; the lawyer is David Markus, of the Southern District of Florida Blog.

George Lyon (mail):
You raise an excellent point. I immediately thought of the child porn law in reading the first portion of this post concerning the fact that dog fighting may be legal in some areas. Child porn is undoubtedly legal some where.

As for the slippery slope, for the life of me I cannot see how the child porn possession prohibition can be squared with Stanley v. Georgia, even accepting the view that the manufacture thereof has grave adverse consequences to society and the individuals involved.
7.11.2007 2:32pm
Steve:
We don't have a problem with the interaction between child porn laws and, say, medical periodicals that have pictures of naked kids. So why should there be some insurmountable definitional problem in prohibiting animal cruelty porn, without also banning newsworthy depictions of animal cruelty? Maybe the present statute isn't drafted perfectly, but that has little to do with the overarching policy concerns.
7.11.2007 2:46pm
The General:
President Clinton issued a signing statement? I guess those are only unconstitutional when a Republican president issues them.
7.11.2007 3:09pm
Steve:
President Clinton issued a signing statement? I guess those are only unconstitutional when a Republican president issues them.

I guess this must be what passes for a clever point in certain circles. No one claims that Bush is the first president to issue signing statements.

The major difference between Clinton's signing statements and Bush's is that Clinton's were drafted very specifically to make clear how he interpreted the law and which parts, if any, he was declining to enforce. (See here for a good example.) Whereas Bush's signing statements tend to be a bunch of lawyerly mumbo-jumbo (and I'm speaking as a lawyer here) like "I construe this statute consistent with the President's power to supervise the unitary executive branch," which doesn't actually tell you what he intends to do or not do. This leaves Congress and potential litigants with no idea how to fix the statute or bring an appropriate court challenge.

Anyway, it's a side point, and judging from your comment you're probably not interested in the merits of the debate regardless.
7.11.2007 3:15pm
Deoxy (mail):
But one shouldn't pretend that the slippery slope risk doesn't exist.

And yes, a very large portion of people manage to, anyway... :-/
7.11.2007 3:16pm
AndyM (mail):

But on its face, the statute would also punish:

...

*

A magazine with photographs of people committing cruelty to animals, aimed at exposing and punishing such cruelty, so long as the magazine is sold on newsstands or by subscription (rather than given away).


Can someone clarify for me why this wouldn't fall under "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."? I'd consider an article aimed at exposing illegal behavior to be pretty squarely in the middle of "journalistic", and probably well within "educational" if it was telling its readers a lot about the hows and whys of the behavior, and arguably within "political" insofar as it was advocating for politicians to do something about it (which to me is implicit in "exposing and punishing" behavior by writing articles), and maybe even of "historical" value by documenting the current state of the world for future generations.

So why is that example so clearly beyond the bounds of the exceptions listed in the statute?


Also on a different part of the statute, why would it be written to ban selling but not free distribution? That seems like an odd oversight in the era of free videos flying throughout the internet. I suppose free distribution requires possession, but then so would sales.
7.11.2007 3:26pm
Anderson (mail) (www):
so-called "crush videos," which generally depict a woman's legs and feet, often in high heels, stepping on insects, mice, or kittens

How about preventive detention for the people masturbating to this stuff? Sheesh!
7.11.2007 3:39pm
Steve2:
"Child porn is undoubtedly legal some where. "

My understanding is that it's more a matter of places disagreeing on when is the upper bound of childhood. I doubt there's anywhere that porn involving, say, 9-year-olds is legal, while what I've read that porn with 17-year-olds, while illegal in the U.S., is legal in some countries.

"As for the slippery slope, for the life of me I cannot see how the child porn possession prohibition can be squared with Stanley v. Georgia, even accepting the view that the manufacture thereof has grave adverse consequences to society and the individuals involved."

Well, if the conduct depicted in a unit of obscenity is legal, and it's just the depiction that's illegal, that would explain part of it. Child pornography, after all, is by definition photo/video evidence of a felony.
7.11.2007 3:44pm
KJ (mail):
This case raises a number of fascinating free speech issues. However, I see it more analogous to obscenity than to child pornography. The key distinction is that the underlying conduct, cock fighting in Puerto Rico, is a perfectly legal activity. Child abuse and sexual exploitation of children are illegal in all US jurisdictions.

One of the most absurd aspects of obscenity law is that the underlying sex acts may be completely legal for adults (fisting, bukkake, consensual rough sex etc.). However speech about these completely legal acts may be illegal. Contrast this to speech depicting illegal activity (The Sporano's, CSI etc.), which is fully protected speech.

Even more puzzling is that private possession of obscene material is protected (Stanley v. Georgia) while it's distribution is illegal. No one has ever explained how an individual can legally obtain obscenity that she has a constitutional right to possess.

I'm not suggesting that the obscenity case law makes any sense at all. However the cock fighting statute resembles obscenity more than child porn because the underlying activity is legal while speech about the activity is illegal.
7.11.2007 3:56pm
scote (mail):
What I find interesting is that this law makes it illegal for the producer to even posses the material in Puerto Rico, where it is legal to make, if he intends to sell it over seas, even to another country where cock fighting is legal. This would seem to be one of the most problematic assertions of the law.

I don't find the child porn exception analogies compelling. Making child porn is, I presume, illegal in all US states and territories, therefore the analogy to a patchwork of different state laws on animal cruelty doesn't hold up. Child porn is illegal to make and posses because making and possessing it harms children.

More troublesome is the broad definition of "Child Pornography" which is the depiction of any sexual activity between minors, including written descriptions, computer simulations, and portrayal by adults. While viscerally I want to agree with such a ban, the reality is that this broad definition includes teen movies like Fast Times at Ridgemont High which has a simulated sex scene with one of the teenage characters, who gets pregnent. Technically that is prosecutable Child Pornography! That shows the law is over-broad, but our visceral desire to protect children--who deserve all the protection we can give them--leads us to un-intended and ridiculous results because we can't speak rationally about this emotional issue.

Now back on topic, it would seem that this law may suffer from the same defect because it bans the distribution--or posession for distribution--of any depiction of animal cruelty without qualification that that depiction must be real as opposed to simulated.
7.11.2007 4:01pm
Houston Lawyer:
What about videos showing the torture or killing of people? With all the terrorists running around these days pushing their cause through the distribution of frightening images, could we stop their distribution based upon the same "child pornography" exception?

In addition, some porn claims to show actual torture and surely shows actual humiliation. Is that protected as well?

I think that this exception could also be applied to the "Hostel" and "Saw" films.
7.11.2007 4:07pm
whackjobbbb:

The major difference between Clinton's signing statements and Bush's is that Clinton's were drafted very specifically to make clear how he interpreted the law and which parts, if any, he was declining to enforce. (See here for a good example.)


Steve,

Your example is a poor one, and states "...this and related abortion provisions in current law are unconstitutional and will not be enforced because they violate the First Amendment."

This statement confirms that the President signed a law that he found unconstitutional, a clear no-no I think you'd have to agree, which has the additional negative impact of creating confusion in the bureaucracy, as it's buffeted by ever-evolving political winds (and it was a clear sop to a special interest group, meaning it was done with political considerations in mind, thus amplifying its illegitimacy).

The full Constitutional/legislative process must be honored, before we can get around to discussing the (lack of?) merit in these "signing statements".

Not that Bush doesn't implicitly do the same thing, as he (allegedly) did with "Campaign Finance Reform", which insiders say he expected (wanted?) the SC to overturn, even as he was signing it (and he too had politics in mind, as he was courting McCain at the time, and CFR was McCain's handiwork). But Bush's signing statements, assuming they are of the character you've described, do appear to be an attempt to assert executive authority within Constitutional confines (even though they do seem to come off as "I'll do what I want in this branch and screw you other 2".).



-----



OT: You lawyers might be interested in this bit of judicial reform here in Michigan, as described by a Federal judge and a local law prof. We've had a lot of squabbling here at the State SC, with "justices" chickenfighting publicly... very unseemly stuff... and the State SC appears to be in need of some adult supervision. These reforms would begin to pull these reform/watchdog efforts away from the lawyer types, and into the hands of We the People, and out into the light of day. Very encouraging stuff, if we can pull it off.
7.11.2007 4:20pm
scote (mail):

In addition, some porn claims to show actual torture and surely shows actual humiliation. Is that protected as well?

Not according to this administration. They are currently prosecuting people for extreme porn. Of course, this administration considers all pornography to violate Federal obscenity laws, they are just starting with the most offensive examples to try and set precedence before moving on to prosecute tamer fare.
7.11.2007 4:27pm
Steve:
This statement confirms that the President signed a law that he found unconstitutional, a clear no-no I think you'd have to agree...

Not to continue the threadjack any further, but no, I don't agree that if the President thinks there's one unconstitutional provision in an otherwise acceptable bill, his only alternative is to veto the whole thing. Issuing a clear signing statement that says which part won't be enforced and why allows the process to continue functioning quite smoothly.

In this case, you're talking about a single paragraph of a 128-page bill, containing a technical modification to an existing statutory provision that the DOJ was already declining to enforce (since, apparently, well before Clinton's time). No, I don't agree that the President was obligated to veto the entire 128-page bill over this.
7.11.2007 5:05pm
KJ (mail):
The statute is a content based restriction on speech so it would be subject to strict scrutiny by the courts. Therefore to be constitutional it must be narrowly tailored to meet a compelling governmental interest. As scote pointed out the statute is hardly narrowly tailored because it criminalizes mere possession of depictions of legal activity in Puerto Rico.

More problematic, is what compelling interest the government has in preventing Puerto Ricans from recording legal activity. Any government argument suggesting that harm done to the animals should over ride the First Amendment in undermined by the fact the cock fighting is a legal activity in Puerto Rico.

Applying EV's slippery slope analogy - If this statute stands couldn't wedding videos from same sex marriages be made illegal in states that don't recognize same sex marriage?
7.11.2007 5:12pm
Zathras (mail):
This case shows how problematic it can be to apply the 1st Amendment to commercial speech, which the speech in the instant case certainly is. As applied to commerical speech, strict scrutiny is certainly not applicable.
7.11.2007 5:34pm
Eugene Volokh (www):
Zathras: How are videos of cockfights any more "commercial speech" than videos, books, magazines, and the like more generally? True, they are sold in commerce; but the Court has consistently made clear that being sold for money doesn't make speech fit within any "commercial speech" exception (or zone of diminished protection). From the 1940s to 1975, when commercial speech was categorically unprotected by the First Amendment, videos like this would never have been seen as fitting within the commercial speech exception; nor do they now fit within the commercial speech category.

"Commercial speech" basically means commercial advertising, or at most speech that's solely focused on the speaker's and listener's economic interests. Entertainment isn't made commercial speech by its being sold for money.
7.11.2007 6:27pm
Dilan Esper (mail) (www):
I think another two distinctions not mentioned by Professor Volokh between this and child pornography are as follows:

1. One of the grounds for suppressing child pornography is that its continued distribution continues to harm the children depicted, because they may see it and suffer additional trauma. This doesn't apply to animals.

2. Similarly, there was a concern noted in Osborne v. Ohio about molesters "recruiting" children for abuse through the use of child pornography. (Although, I should note that Ashcroft v. Free Speech Coalition limited the application of this rationale.) Again, I can't imagine this sort of speech being used to "recruit" roosters to cockfighting.
7.11.2007 7:22pm
whackjobbbb:
Steve,

I take your point, and it appeals to me if only as a matter of expediency. But if we're gonna have "signing statements", to include statements that identify perceived unconstitutional provisions that won't be honored, then I suspect you're stuck with Bush pushing his vision too. They're both doing the same thing... which is whatever they want, evidently.
7.11.2007 8:04pm
scote (mail):

2. Similarly, there was a concern noted in Osborne v. Ohio about molesters "recruiting" children for abuse through the use of child pornography. (Although, I should note that Ashcroft v. Free Speech Coalition limited the application of this rationale.) Again, I can't imagine this sort of speech being used to "recruit" roosters to cockfighting.

Maybe not roosters, but cockfighters for sure.
7.11.2007 8:15pm
David M. Nieporent (www):
Not to continue the threadjack any further, but no, I don't agree that if the President thinks there's one unconstitutional provision in an otherwise acceptable bill, his only alternative is to veto the whole thing. Issuing a clear signing statement that says which part won't be enforced and why allows the process to continue functioning quite smoothly.
The problem with that argument is that the presidency is term limited both by law and mortality, and a signing statement is not a line-item veto; it's merely a declaration that one won't enforce one part of a law.

The fact that one particular president says he won't enforce that part in no way precludes a future president from doing so.

So, yes, a president is obligated, as a matter of his oath of office, to veto a law with any unconstitutional parts.
7.11.2007 10:25pm
scote (mail):

So, yes, a president is obligated, as a matter of his oath of office, to veto a law with any unconstitutional parts.

More or less so than congress? Since the Supreme Court is the arbiter of what is constitutional what basis should the President use to veto "unconstitutional" bills? Beyond a shadow of a doubt? More likely than not?

As to signing statements that vow to ignore a legally passed law, those seem un-constitutional to me, the brilliant rationalizations by respected legal scholars notwithstanding.
7.12.2007 4:30pm
Dilan Esper (mail) (www):
scote:

Interesting point, but I understand that the danger in Osborne was in recruiting children, not recruiting adults. I assume the Court figured that adults could think for themselves. In any event, if Osborne were read to permit suppression of speech due to its effect on adult viewers, it would be inconsistent with numerous cases that hold that speech cannot be suppressed on its effect on the listener/viewer.

The analogue to the children in Osborne (i.e., the beings depicted) would be the roosters, not the adults.
7.12.2007 7:33pm
KJ (mail):

if Osborne were read to permit suppression of speech due to its effect on adult viewers, it would be inconsistent with numerous cases that hold that speech cannot be suppressed on its effect on the listener/viewer.


Dilan-

Actually, this would be consistent with obscenity doctrine. Under Miller v. California, the test for obscenity considers inter alia whether material is "offensive" under community standards. Under the Miller Test it's irrelevant whether or not anyone was actually offended, only that the material conflicts with the community standard. Certainly the basis of the Miller Test is that material can be criminalized solely on the basis of it's potential effect on people who might never see the material. This cockfighting statute seems to fit the obscenity model more than the child pornography model.

The entire concept of banning obscenity is based on protecting "morality". Whether or not protecting morality is a legitimate government interest has been called into question by Lawrence v. Texas. It will be interesting to see what compelling interests the government asserts in this case.

Nevertheless, the statute appears especially vulnerable to an as-applied challenge by residents of Puerto Rico
7.12.2007 8:38pm