Analysis on Animal Cruelty -- Overturning the Law

I would uphold the law Congress passed particularly when it comes to crush videos and acts of severe animal cruelty. However, I don’t think that this would hold and that based on what we have learned, that I would have no choice but to overturn the law Congress passed. I would do this when considering the precedents set in Cohen v. California. In this case, the videos of animal fighting were expression, not action, and expression is to be absolutely protected. Provocative and challenging material often expresses ideas and emotions, and to suppress that is to suppress ideas, and as we have learned, we cannot punish speech and violate the First Amendment rights due to a bias or based on content. This would lead to a very slippery slope that we don’t want to go down when considering speech that has to do with the freedoms of speech and expression. In addition, in the precedents set in R.A.V. v. St. Paul (1992), the government cannot practice content-of-message discrimination punishment, such as specific fighting words based only on race, religion, gender, and creed, without prohibiting all fighting words in general. But this prohibition would be too overly broad and purges the public debate of too much speech that should be protected. Thus, based on this precedent, the law would need to be overturned because it is discriminating based on content. Also, consider Brandenburg v. Ohio and the fact that this speech does not incite immediate and imminent harm or illegal activity, as with the precedent set in that landmark case.

I would also state that this law would need to be overturned because while the state statutes prohibit the action, section 48 prohibits the speech. And while I completely agree in prohibiting acts of animal cruelty, the speech could potentially fall under the SLAPS clause. It could have artistic value in documentaries and showing something that is legal in many other countries. It could also have political value in that anti-animal cruelty organizations, like PETA, could be fighting against animal cruelty by using such animal fighting videos to their advantage. In considering Chafee’s worthwhile v. worthless speech, this could be considered worthwhile speech, as it holds SLAPS value, most likely artistic, political, educational, journalistic, or historical, and thus could hold some social value. This would allow the speech to be proven as worthwhile speech. Some may still consider it to be considered worthless speech as it depicts acts of animal cruelty, so I think that Meilkejohn’s theory of protection for political speech should also be considered in that political speech that concerns the general welfare is absolutely privileged. In addition, once again, expression v. action should be part of the debate as the speech is an expression, not an action – in other words, the film was expression of the speech, but was not actually acting in hurting the animals

I would also have to choose to overturn the law because it involves the possible violation of an explicit, fundamental First Amendment right, and thus would have to fall under strict scrutiny analysis. However, I don’t think that the law could pass strict scrutiny analysis because the speech that §48 addresses warrants very strong legal sanctions. There have been state statues put in place condemning and prosecuting the acts of animal cruelty and target the actual conduct that offends the sensibilities of most citizens, but punishes the conduct, not necessarily the speech. §48 does not federally criminalize the conduct itself, but prohibits the creation, sale, or possession of a depiction of animal cruelty – this has First Amendment rights implications and would most likely not stand up against strict scrutiny analysis, like United States v. Williams did not. In other words, the Supreme Court recognized the governmental interest in protecting animal rights from cruelty, but animal rights do not supersede fundamental human rights. The government can and does protect animals from acts of cruelty, but to make possession or creation of films of such acts illegal would infringe upon the free speech rights of those possessing the films, and would not stand up against strict scrutiny as it would infringe upon the explicit, fundamental, constitutional First Amendment right of freedom of speech and expression and a content-based restriction on speech is “presumed invalid.”

Thus, overall, as much as I would like to uphold the law, I find more reason, based on past precedents and philosophies, to overturn the law and allow the speech.