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Is watching illegal dog fights a constitutional right?

Mark Mardell | 18:27 UK time, Tuesday, 20 April 2010

Hear that dog yelping in agony? That's a cry of freedom! So the US Supreme Court has decided, ruling that a law aimed at banning videos of animal cruelty is an infringement of the first amendment, freedom of speech.

US Supreme Court

Robert J Stephens, owner of a business called Dogs of Velvet and Steel had been sentenced to three years in prison for producing videos like Japanese Pit Fights and Pick-A-Winna which showed pit bulls fighting and attacking other animals, including a "gruesome" scene of an attack on a farmyard pig.

The Supreme Court has ruled in his favour agreeing with the argument that the law is "over broad" and so invalid under the first amendment.

The original law against material depicting animal cruelty has a curious history. It was designed to outlaw what are apparently known as "crush videos".

Given that the Supreme Court has invested time and money in a graphic explanation of what these are, I can do little better than quote them.

"Crush videos often depict women slowly crushing animals to death with their bare feet or while wearing high heeled shoes, sometimes while talking to the animals in a kind of dominatrix patter over the cries and squeals of the animals."

Given there is a sexual element in these, the Supreme Court appears to be sympathetic to the rationale behind the ban. Simple cruelty they find less offensive.

They find that while dog fighting is outlawed in all 50 states and there is a long tradition of laws against animal cruelty there is no such "tradition prohibiting depictions of such cruelty".

They find the law is of such "alarming breadth" that it could include merely killing and wounding animals and find no reason why it should not also apply to videos about hunting.

On the face of it, the ruling sounds perverse, although not as perverse as crush videos.

But there is a hugely important logic that lies behind the ruling. The Supreme Court honed in on government arguments that such videos fall outside protected free speech because they are not historical, instructional or of use to society and have "a minimum redeeming value".

That, they say "as a free floating test for first amendment coverage...is startling and dangerous" adding:

"Our Constitution forecloses any attempt to revise the judgement simply on the basis that some speech is not worth it."

The court points out that most speech doesn't have much intrinsic merit (there is a learned argument about the gap between "scant", "trifling" and "serious") and that doesn't mean that it can or should be banned.

I don't think the argument differs much in practice in most Western democracies, but in theory there is a huge distinction between a state that under a constitution allows freedom of speech, and permits the government to make argument for exceptions and one where the government doles out permission to say or do specific things.

Have they got the balance right here?

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