By Renee Gerber

I know, I know.  Posting twice in two days — where am I finding the time given that I have papers and finals just like everyone else?  Ah, the power of procrastination.

I haven’t yet had a chance to talk to anyone about this case that was granted cert last week.  In summary, the 3rd Circuit struck down as violative of the First Amendment a federal law that criminalizes depictions of cruelty to animals.  In the case before the court (and now the Court), the depictions at issue were videos of dog fighting advertised in an underground magazine called Sporting Dog Journal.   The law was passed, however, to address the problem of “crush videos,” videos of animal cruelty that apparently do pretty good business on the Internet.

If you have a queasy stomach, you may want to bypass the description of crush videos and skip to the next paragraph.  If you want to know what crush videos are, read on.  The videos satisfy a very specific brand of sexual fetish.  Basically, they are videos of women wearing high heels (or sometime barefoot) torturing animals by literally crushing them with their feet.  The animals’ squealing can be heard on the video, and sometimes the woman also talks to the animal using dominatrix patter.

While the torturing of animals is prohibited by state law in every state (through cruelty to animals statutes), the videos are made in such a way that you cannot see the women’s faces, nor the locations in which the videos are filmed.   Therein lies the conundrum: basically untraceable to law enforcement, but easily found and bought online.  Not only that, but the cruelty would almost never occur if it weren’t a money making proposition.  Congress’ reaction was to attack the means of production in addition to the cruel acts themselves, in much the same way that we criminalize the marketing/selling/buying of child pornography in addition to criminalizing the actual acts in an attempt to affect the prevalance of a crime by undercutting the economic reason for its prevalence.

But is animal cruelty the same as child abuse?  And are dog fighting videos and crush videos the same as child pornography? I am a bit appalled at my initial reaction to reading the 3rd circuit case:  when all I had read was about the dog fighting videos, I was unimpressed and my libertarian side won out, but after reading about crush videos I changed my mind.  Now I’m conflicted. 

Generally I support the very broad concept of speech espoused by the 3rd circuit, and I’m definitely not a fan of courts creating new categories of unprotected speech.  I’m also generally quite species-ist; I’m not concerned with animal rights to even a tenth of the degree to which I’m concerned about human rights.  But after reading some of Congress’s rationale, and about these crush videos, I do think I’m swayed.  Making these videos and selling them isn’t expression, it’s just making money off of incredible cruelty to animals.  We’re not talking depictions of slaughtering cows like the last scene in Sergei Eisenstein’s Strike here.  This is something beyond even that pale.  So (I think) I’m OK with criminalizing the money-making portion of the endeavor in order to cut off the impetus for the physical crime. 

 However, I’m still a little bit iffy about the parallel from crush videos to child pornography.  Child pornography is such a big exception to our First Amendment jurisprudence, and I am loathe to extend the reasoning in Ferber (the case that classified child pornography as unprotected by the First Amendment and upheld laws that prohibited it) when obviously it was supposed to stop at child porn and child porn only.  I think the parallel is much better from crush videos to, say, snuff films (videos of actual murders), though I’m not sure if snuff films are unprotected speech or not.  It seems to me that snuff films might be prosecuted under an incitement theory or a criminal conspiracy, therefore making it unprotected speech.  Maybe my ultimate opinion would turn on the legality of those fims, or whether crush videos could be prosecuted under any other alternative means more linked to other types of unprotected speech arguments rather than the child pornography exception alone.

Any insights, people?