Not much can trump the right to free speech. Not racial slurs, not government secrets–not even the slow death of kittens for sexual stimulation. Not until recently, that is.
Last month, Congress enacted the Animal Crush Video Prohibition Act of 2010, making it illegal to distribute fetish films called “crush videos,” which portray women killing small animals with either bare or high-heeled feet for sexual stimulation.
“Men with this type of masochistic fantasy have, through personal life experience, linked their sexual gratification with personal humiliation,” said Kevin Volkan, chair & professor of psychology at the California State University, Channel Islands, at a hearing of the Senate Judiciary Committee in September. “These individuals resort to watching the torture of animals, imagining what it would be like if they were the animal being tortured and/or squashed by a controlling, domineering, over-bearing female partner.”
“In 1999, some 2,000 titles existed,” wrote Philadelphia lawyer Joseph Anclien in the University of Memphis Law Review in 2009. In 1999, Congress passed a law enacting five-year sentences for people who knowingly distribute these videos. “Section 48 eliminated the market for crush videos, and they were driven from existence.”
But that wasn’t good enough for animal activists, who say the videos are still being produced.
In the last few years, these now-illegal, underground videos have faced the wrath of numerous advocates like Dr. Elliot Katz, the founder and chairman of the board for an international animal-rights organization called In Defense of Animals.
“Animal advocacy, trying to change society’s viewpoints on what’s going on in factory farms and how animals are exploited, is continual fighting upstream because these are long-standing customs,” Katz said. “There is big money to be made, and so for me it’s been a fight from the beginning.”
Wrath might not be the best word to describe Katz’ disposition. His voice is soft, his demeanor softer, but since he started his career in animal activism 20 years ago, Katz’ tenacity has made him a force to be reckoned with.
“One theme of my life is that I have always fought for the underdogs, or I have always believed in the underdogs,” Katz said. “I guess I started off as the underdog on some level. I guess that is why I associated more or communicated better with my animal companions than I did with human beings.”
In a grassroots lobbying campaign before the legislation passed, In Defense of Animals, based in San Rafael, Calif., called for people across the nation to write to their congressmen to do something about these fetish videos.
But Katz’ campaign was up against the notoriously hard-to-beat First Amendment and its tradition of almost always favoring the right to free speech.
In 2004, the United States v. Stevens Supreme Court case ruling determined that depictions of animal cruelty did not constitute a new category of speech that is not protected by the First Amendment.
First Amendment lawyer Frederick Blumberg said only a few categories of speech are unprotected by the amendment: defamation, speech that causes panic, fighting words, incitement to crime, sedition and some forms of obscenity.
The task of determining that depictions of animal cruelty fell into one of these categories was challenging.
“When Justice Stewart said, ‘I know it when I see it,’ he was really making a profound statement,” Blumberg said. “You kind of just look at it and say, yep that crosses the line or no that doesn’t cross the line. It’s not that you can’t see what obscenity is, its that he can’t tell you why.”
According to Blumberg, the act of cruelty was never in question. It is the freedom to disseminate information–regardless of content–that was being protected when Congress struck down a similar “crush video” bill last April that was ruled to be too vague to pass. The court was looking for a bill that was worded specifically to allow things like hunting videos, wanting to pass a bill that prohibits only “crush videos.”
They found it.
When Congress passed the act last month, Katz found himself celebrating another cause well-defended, saying that these depictions of animal cruelty are obscenities with no redeeming qualities or social benefits.
But not everyone is. The American Civil Liberties Union, for example, is concerned about the rulings effect on free speech.
“Most of us don’t have much sympathy for people who enjoy seeing animals tortured and killed.” wrote Lucas Tanglan on behalf of the ACLU on the organization’s Blog of Rights. “Maybe there’s a way for Congress to fight this cruelty without infringing on a wide swath of protected speech. But the bill the House just passed makes the familiar mistake of sacrificing too much free speech.”
Not everyone believes this is a “familiar mistake.” Stanley Fish, professor of law at the Florida International University, wrote in a column for the New York Times that the government has a tendency to favor free speech to the extent that it has an almost God-like influence.
“It is an irony of history that the First Amendment,” Fish wrote, ”has itself become an orthodoxy, a religion, a veritable deity, and one that demands an absolute fidelity. And, sure enough, in its name any number of horrible ‘expressive’ acts are performed and then declared constitutional. Glory be to God.”
He added that, often, “before coming down on the side of the speech the government tries to regulate, the Court declares its distaste and even revulsion in the face of what it must, according to its lights, permit, as if to say, ‘we are on the right moral side, we regret having to do this, but, hey, it’s the First Amendment.’”
But in this case, Congress came down on the other side, ruling that these videos are just too obscene, and in Blumberg’s words, have no “cultural merit.”
Katz said he has seen our society go from putting animals down for shedding too much to one that will abridge the right to free speech in the name of animal safety. But in a tradition of standing up against animal cruelty, he says that his job is not done, that people still have a ways to go when it comes to defending the rights of animals.