I wrote a column once about the possible reintroduction of wolves in Rocky Mountain National Park and a reader responded by e-mailing me a video of a wolf killing a deer — lest I harbor any illusions about this predator, I suppose.
I clicked on the video, watched in horror for a few minutes as the wolf, utterly indifferent to its victim’s pain and terror, slowly dismantled the hindquarters of the still living deer, and then clicked it off.
For hours, though, I couldn’t get the video out of my mind.
I recalled those graphic scenes when I read this week that the U.S. Supreme Court agreed to hear a case testing the constitutionality of a federal law banning the creation, sale or possession of depictions of animal cruelty in order to distribute them across state lines for commercial gain. Not that the law outlaws possession of what I had watched. Last time I checked, cruelty to deer is legal so long as a four-legged creature inflicts it.
But the sort of unforgettable brutality I witnessed is not confined to the wild. What if the video had been of an illegal dog or cock fight? Should someone be able to distribute a clip of an animal being maimed, tortured or killed in such an engagement — or, more to the point, sell it to you or me?
As horrible as animal suffering is, the best answer is yes. Fortunately, that’s what a federal appeals court in Philadelphia concluded in 2007 when it overturned the conviction of a lowlife named Robert Stevens for selling videos of pit bulls mauling one another and other animals. Since the law deals with depictions of animal cruelty — the cruelty itself is already illegal — the First Amendment comes into play, the court said. A majority of the judges simply weren’t ready to carve out another type of speech that the government is allowed to regulate.
As the court explained, “It has been two and a half decades since the Supreme Court last declared an entire category of speech unprotected” — and that was child pornography. Other types of speech that are totally unprotected, the court noted, include “fighting words,” threats, speech that “imminently incites illegal activity” and obscenity (although the enforcement of that last category is something of a joke).
The only category of unprotected speech remotely similar to animal cruelty is child pornography — yet the differences are also huge, beginning with the fact that our culture invests children and animals with different moral value — as most of us believe it should. But even if you consider children and, say, roosters of equal importance, the analogy still fails, as the court explained.
Illegal dog fighting, for example, thrives on a live audience of gamblers. Banning the videos will not vanquish the exploitation of most of these dogs.
Also, knowledge of the pornography’s existence can scar and humiliate its victims for as long as they live. Animals share no such awareness.
For that matter, it’s not always easy to define what sort of cruelty falls under the law (which includes exemptions for science, education and other purposes). One of the videos seized from Stevens showed “dogs hunting and subduing wild hogs,” to quote the court. A second involved dog fights in Japan, where they’re legal. What about a gory bull fight? Would selling a video of it be banned because such events are illegal here and involve suffering?
We should be extremely careful about adding exemptions to the First Amendment involving speech and images we detest. Where does it stop? What kind of amendment will it be when only speech and images we find harmless are allowed?
Animal cruelty is a serious offense. But outlawing its depiction would be a step onto a dangerously slippery slope.
E-mail Vincent Carroll at vcarroll@denverpost.com.
