The most memorable video we watched in middle school showed the treatment of animals in the beauty industry. Students squirmed as they saw what happens to a rabbit’s eyes after lipstick has been shoved in them. Many kids covered their faces. Others protested having to watch.

It bothered me then, newly a vegetarian, to see students shielding themselves from confronting cruelty. But today it troubles me more to see animal rights advocates defending a law to banish images of cruelty entirely.

The federal law, Section 48, prohibits selling any “depiction of animal cruelty” across state lines. The Supreme Court is now considering whether the ban – targeted at violence fetish “crush” videos of people stomping animals, but far broader in scope – violates the First Amendment. Animal rights groups and the Obama administration are asking to Court to restore Section 48, which was overturned by 3rd Circuit Court of Appeals, along with the conviction of Robert Stevens, who created and narrated dogfighting videos using others’ footage.  Stevens had been sentenced under Section 48 to three years in jail for making the films.  Michael Vick served one year less for running a dogfighting ring.

Animal Rights groups like the Humane Society reassure us that Section 48 specifically exempts works with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” But by carving out that exception, the law’s authors only confirm that banning videos just because they depict violence against animals is a problem for free expression. That exception is no solution. Section 48 requires depictions of violence against animals, unlike other speech, to demonstrate serious value (How would Zombieland fare against the same standard?). It’s an arbitrary standard, and it invites arbitrary judgments: In oral arguments, Deputy Solicitor General Neal Katyal reassured the Justices that Spanish bullfights are artistic enough, and Roman gladiator contests are historic enough, to be exempt from the ban.

Some have defended Section 48 by comparing animal cruelty law to child pornography. But the act of capturing an abused child on tape is, itself, a further violation of the child’s dignity.  Few would argue, on the other hand, that the act of taping an abused animal is a separate violation of the animal’s rights.

As part of his defense, Stevens is now claiming that his videos, which he marketed through the underground “Sporting Dog Journal,” were really designed as critiques of dogfighting.  As a factual claim, that’s hard to take seriously.  But by raising the hypothetical – what if these videos really were intentionally nauseating exposes, theApocalypse Now of dogfighting – he highlights a serious challenge to Section 48 and its defenders.  If the law would ban the ugly film supporting dogfighting but permit the one opposing it, how can animal rights advocates defend it under the First Ammendment? On the other hand, if the law bans disturbing images equally, whether they condone or condemn the cruelty, should those advocates want to defend it?

Anti-abortion advocates use images of abortion. Anti-war activists use images of war. We should expect animal rights activists to use images of animal abuse. Why would they make it easier to ban them?

Most Americans stand somewhere between Michael Vick and veganism. California voters last year passed tough (and expensive) new protections for farm animals. But few blinked when Republicans tapped as Senate Majority leader a surgeon who’d once admitted to gathering cats from shelters for extracurricular experiments.  Dr. Frist’s actions still strike the nation as more strange than sadistic.  A country in which taking out your curiosity on cats is no more than a bump on the road to national leadership is a country with no consensus against animal cruelty.  It’s a country in which you can earn some bucks on it.  Katyal estimated that at the time Section 48 became law, there were 3,000 “crush” videos on the market.

Advocates want to ban animal cruelty imagery not because of how many Americans abhor it but because of how many Americans enjoy it.  They would not be expending time and energy to keep these videos banned if there weren’t a chunk of Americans in the market for them.  But the real challenge facing animal rights advocates is not how to make these videos less legal – it’s how to make them less popular.  Banning video of animal abuse is no more effective as an animal rights tactic than trying to make 24 illegal would be as an anti-torture tactic.

Animal rights advocates should not look to film critics in robes to stand between loathsome video and loathsome impulses. Rather, they should look to the democratic process to move the majority and strengthen laws against acts of cruelty.  A moment of increasing popular interest and awareness about where our food comes from and how it arrived on our plate is a moment of real opportunity to pass laws that protect animals from food industry abuse – time better spent than time pushing laws to protect Americans from bad ideas.

As animal rights advocates take on the real fights against companies mistreating animals, history suggests they’ll be invoking some disturbing images of their own.  And that their opponents will seek to have them silenced or shut down.  When PETA released video of staff at Convance Inc. hitting the monkeys they were using for experiments, Convance sued PETA.  When PETA released video of staff at Huntingdon Life Sciences autopsying a still-breathing animal, Huntingdon sued PETA.  It’s only a matter of time before PETA’s antagonists, be they lipstick tycoons or puppy mill proprietors, again sue them for bringing uncomfortable images to light.  When that happens, advocates will want more than their work’s “serious value” to protect them. They will want the First Amendment.

PETA’s most famous film, “Unnecessary Fuss,” uses footage shot by staff at UPenn’s Head Injury Clinic researching brain damage on baboons.  Researchers laugh and joke after accidentally tearing a monkey’s ear off while prying its head from a helmet attached with dental cement.  PETA’s video led to the firing of UPenn’s chief veterinarian and the demise of the clinic.  It’s a disturbing video, and it depicts animal cruelty.  You can watch it on YouTube.  But think twice before you try to sell it, or an expose like it, across state lines.  If the Supreme Court backs Section 48, you could be breaking the law.  If you’re sued, will PETA come to your defense?




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