Animal Cruetly, We Have a Duty to Protect the Animals

The question in communicative justice raised by the case of United States vs. Stevens is whether or not the law with regards to banning depictions of illegal animal cruelty is constitutional or not. Although the law has been deemed unconstitutional in this case, should the law Congress passed be overturned or upheld? Furthermore, does the government have to provide a compelling reason for banning this speech or would a lower level of scrutiny suffice? Is the law too overbroad? I claim that the law Congress passed is constitutional and should be upheld. While the law many seem overbroad, the second part of the law that agrees to uphold “scientific, journalistic, religious or political value” makes it’s clear what is allowed and not allowed by the law.
In United States vs. Stevens, Mr. Stevens claimed that the animal cruelty law restricted his freedom of speech. As the civil libertarian, Zechariah Chafee argues, “the individual type of expression is important but that it does not weigh as heavily in the balance as does speech concerning the social interest.” The social interest in this case is the protection of animals. The majority of society feels that it is wrong to harm animals. Therefore, the depiction of this cruelty should be wrong as well. Chafee's use of The Social Interest Clause comes into play here. The Social Interest Clause, according to Chafee, is an attainment of truth when people are well informed on public issues. Therefore, if a animals rights organization has to show depictions of animal cruelty, that form of expression should be protected since they are working towards bringing truth to light. In the same way that the distribution of child pornography is wrong, the distribution of animal cruelty or animal pornography is wrong. It is the duty of our government to protect the people and animals living in our country and this law was designed to do just that.
Historically the practice has been that “fighting words (Chaplinsky vs. New Hampshire), some kinds of incitement (Brandenburg vs. Ohio) obscenity (Bethel vs. Fraser) and starting in 1982, no obscene pornography involving children (New York vs. Ferber) are outside the protection of the First Amendment.” (nytimes.com) Nonobscene pornography involving children was “a major constitutional shift…it is the only place in the First Amendment law where the Supreme Court has accepted the idea that we can constitutionally criminalize the depiction of a crime.” This same constitutional shift should be applied to the issue of the depiction of animal cruelty. Cruelty to animals is not much different than cruelty to a child.

For the same five reasons that New York vs. Ferber was different than Miller vs. California, animals should be protected. First, the court should have a very compelling interest to protect animals (like they protect children) because both parties are marginalized pieces of society that often cannot speak for themselves. Second, the distribution of animal cruelty images is directly related to animal cruelty itself (in the same way that they found for child porn) Third, producing visual animal cruelty such as crush videos, there is a market being created for such distgusting behavior. Fourth, pictures of animals in pain has no artistic value and lastly, animal cruelty does not need to be deemed obscene before it can be made illegal. Just because there hasn't been much precedent on this issue, doesn't mean that something can't be done about it now.
Judge D. Brooks Smith, writing for the appeals court majority said, “While animals are sentient creatures worthy of human kindness and human care,” he wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace.” I claim that there is no way to tell whether or not animals are harmed by images of their suffering. One cannot seriously claim that they are not harmed by this; there is no way to tell. Until humans have access to the animal mind, there will be no way to prove. Until then, we must respect these creatures by giving them the benefit of the doubt. Animals should be protected from harm when possible.
While the Supreme Court overturned this law due to overbreadth, I claim that the law is not overbroad and states clearly what is not protected under the law. Looking at the actual words of the law, the SLAPS clause added to the end is a clear depiction of what should be protected and what should not be. In the same way that Mapplethorpe’s images were protected, depictions of animal cruelty used in scientific, political, journalistic or religious ways should be protected too. In October of this year, President Obama asked the Supreme Court and Congress to take a second look at the law. Because the President has veto power, the executive branch should yield to the President’s legislative goals. To justify my claim, I will rely on the above following forms of reasoning. Philosophically, doctrinally, structurally, socially and textually, I claim that the law Congress passed is constitutional and should be upheld. While the law many seem overbroad, the second part of the law that agrees to uphold “scientific, journalistic, religious or political value” makes it’s clear what is allowed and not allowed by the law.