CMJR 494 Blog Post #6 (Animal Cruelty)

CMJR 494 Blog Post #6 (Animal Cruelty)

Analyze the philosophical and doctrinal issues with regard to banning depictions of illegal animal cruelty as you explain whether you will uphold or overturn the law Congress passed. Be sure to ground both philosophically and doctrinally. Pay attention to the issues of scrutiny (does the government have to provide a compelling reason for banning this speech or would a lower level of scrutiny suffice?) as well as to the issue of overbreadth. If you strike down the law because you think it is overly broad, what type of law, if any, would you propose?

Just as the Supreme Court justices seem to be leaning in United States vs. Stevens, I would agree due to the issue of overbreadth that the law regarding crush videos that Congress passed should be overturned. However, there a couple parts of this decision that I would add changes to in general. First, the level of scrutiny that the government must prove, and second, when it comes to the issue of overbreadth, I would go ahead and propose a new law.

I would first like to state that I think that animals do deserve some sort of governmental protection, but it is hard to draw the line for obvious reasons. Yes, as the 3rd circuit pointed out, the well-being of humans does take precedent over the well-being of animals. I do understand that with an implementation of a law that protects animals' rights over humans, it would stir up major ethical issues. At the same time, I find it difficult to overturn a law that could potentially protect animals from pro-longed pain and torture. But where would that law's authority end? That is the most difficult line in the whole case. The majority of the US eats animals every day, just as one of the justices points out about the controversial dish of foie gras and without the perfect wording for a law to protect animals, all of a sudden the American population might have to become vegetarian.

I believe the offense principle seems to be the most applicable to United States vs. Stevens. The reason I believe offense is the best philosophical argument is because it is hard to argue that the harm principle would apply to animals. As most people tend to argue, the animals aren't haunted by the pain or humiliation later in their life, after watching the "crush videos" (if the survive). There is no way to know the psychological affects of animal cruelty of the animals, therefore, harm is hard to prove. (Sidenote: I do not agree with the argument that claims that dogfights will not go away if the videos are put to a stop, but that making of child pornography would cease if the children were no longer allowed to be exploited. This is a poor argument because children are still exploited even when child pornography is illegal. I believe that if there is a demand for something, which there obviously is in regard to underage sex [just watch "To Catch a Predator" on 60 minutes] then there will continue to be a market for it. And even if they stop making videos, who is to stop those people from having viewing parties of the real thing at their house? This is exactly what happens in the sense of animal cruelty. State laws prohibit certain actions, but it still happens- and it happens in real life arenas instead.)

So Joel Feinberg's Offense principle seems to be the most applicable in the hypothetical upholding of the law. As was argued in FCC v. Pacifica:

He defines “harm,” in

the sense relevant for the Harm Principle, as involving the viola-

tion of a person’s rights which involves a setback to that person’s

interests.5 Thus, for example, I am harmed by your intentional

breaking of my legs in that you did so against my will and your

doing so sets back my general interest in being able to walk around

on my own. “Offense,” on the other hand, in the sense relevant for

the Offense Principle, involves conduct producing “unpleasant or

uncomfortable experiences – affronts to sense or sensibility, dis-

gust, shock, shame, embarrassment, annoyance, boredom, anger,

fear, or humiliation – from which one cannot escape without unrea-

sonable inconvenience or even harm.”6 Being offended, in other

words, involves being subjected to a particular kind of nuisance:

I both suffer a “universally disliked mental state”7 caused by the nuisance, and

“I attribute that state to the wrongful conduct of

another.”8

Of course, most of us probably have an interest in not being

offended, but if that is true, then every time we are offended we are

straightforwardly harmed, according to the preceding definition of

harm, insofar as our general interest in not being offended has been

violated.9 Thus it would seem that all cases of offense are actually

cases of harm.

I agree with the concept of the law that Congress came up with, but it is obvious that it is unconstitutional. I believe the threefold argument that the 3rd circuit presents is completely applicable due to the fact that the law is too broad. The attorney in favor of the law, Mr. Katyal, brought up Ferber vs. New York and the Free Speech Coalition cases and said that in those decisions congress was not targeting the contents of a depiction; rather, it was trying to dry up the underlying market (child exploitation in that case).

The Supreme Court did not seem to buy this argument and instead brought up American Booksellers vs. Hudnut where cities apparently attempted to make violent depictions the subject of civil suits. Justice Ginsburg said, "The 7th circuit said that that was a blatant violation of the 1st Amendment, to go after purveyors... and I believe we summarily affirmed."

This illustrates why the issue of overbreadth is so critical- it would include way too many outlets and parties that we normally wouldn't think of when seeking to prosecute those who torture animals. As pointed out above, it could include restricting certain types of food, certain types of hunting, etc...

As Justice Scalia said, "You can't separate the means for the end and say, since its end is simply to prevent the activity, the means, which is prevent communication is ok." Because it definitely would not be ok in this sense.

Therefore, I am not sure what my exact rewording of the new law would be. I would like to reinstate some type of law that would protect animals from being needlessly tortured for entertainment. However, if the states continue to implement laws against the cruel actions toward animals, it may become irrelevant for the Supreme Court to have to rule on the depictions, because there wouldn't be any to monitor.

In conclusion, I believe animal cruelty is wrong, but the law in question in unconstitutional due to overbreadth.