Animal Cruelty

In the United States, abusing animals with situations like dog fighting is illegal. As an expression, animal cruelty is controlled by a law made in 1999. Under the law, it is a crime to create, possess or sell animal cruelty material. For example, Robert Stevens was sentenced for selling videos of dog fighting which was filmed in Japan where dog fighting is legal. However, it was found that the government has no compelling interest to suppress animal cruelty expression, and the analogy to a child pornography case was rejected. Later, The U.S. justice department appealed that the issue of animal cruelty should be treated like the issue of child pornography in that animals should be protected in the same manner as the Ferber and Osborn cases.

Although the U.S. law treats these two very differently from each other, I think animal cruelty shares some elements with child pornography. For example, the production of animal cruelty material is directly connected to some degree of animal abuse just as the production of child pornography usually harms children both physically and psychologically. Also, both animals and children are more vulnerable than adults. In addition, animal cruelty could be a kind of porn as some people feel sexual aroused by watching a crushing video, which is a video of killing an animal by a woman’s high-heel shoes. However, there are two major differences between animal cruelty and child pornography. The U.S law allows the production and distribution of animal cruelty materials that have “scientific, journalistic, religious or political, historical and artistic” value. In addition, the law only restricts the market of animal cruelty instead of distribution itself. Although the law offers a kind of SLAPS value for animal cruelty materials, after 1999, which is the year the government imposed the law, the market of animal cruelty crushing videos with about 2000 videos disappeared although some of them just changed their platform to online. These expressions are not considered illegal as long as they do not “sell” these images/films because the law only bans animal cruelty material for selling.

Also, the animal cruelty SLAPS values is overly broad and too vague, so it may be easy for these creators to claim artistic or scientific value for their expressions. For example, Robert J. Stevens who was prosecuted for selling dog fighting videos claimed that there was an educational value to the animal cruelty materials that he sold. Although he was sentenced to 37 months in prison, the current law may give ways for criminals to get away with the law. It can be said that the government is not accomplishing their interests of “regulating the treatment of animals” and “discouraging individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings” because the law only restricts commercial materials instead of all kinds of distribution although animal cruelty expressions are in everywhere.(The House Committee report.

I believe that expressions should be protected even though sometimes they may capture an illegal activity such as doing drugs or stealing. However, the law for animal cruelty should be treated with strict scrutiny and defined specifically because like child pornography, the production of images of animal cruelty harms vulnerable animals; also, it may be harmful for viewers. The current law may be overly broad and too vague to protect animals from being abused. For example, I think that the law should restrict all distribution of animal cruelty material instead of just commercial materials in order to restrict online animal cruelty materials.

However, exceptions should be allowed like the case of Sally Mann for child pornography. For example, foreign movies are likely to suffer if the law does not allow artistic movies. In Spain where bullfighting is legal or Japan where dog fighting is not criminalized, artistic materials such as movies may contain some scenes with bullfighting or dog fighting. These movies would have to be banned in the U.S. because of these scenes. Therefore, I believe that the law needs some flexibility. For this reason, I think the content should be considered as a whole. In addition, suppressing all cruelty materials would create another potential problem. There are many animal cruelty materials in the U.S. that may have historical or scientific values. Also, there are political movements to protect animals from animal abuse. Therefore, I employ the philosophy of Chafee, so these socially worthwhile should be protected. However, these social worthless expressions need to be suppressed like the case of Chaplinsky v. New Hampshire.

In terms of a burden of proof, I think that the burden of proof can be on the speakers. Although I did not really like the libel law of Canada, I think animal cruelty can be one of the issues in which the government should have strong control because the government has a compelling interest in suppressing the animal cruelty as well. The burden of proof is also on the speaker in obscenity and child pornography cases. Because animal cruelty also shares some elements with obscenity as well as child pornography, it may be reasonable to put the burden of proof on the speaker. According to The 3rd circuit decision, the defendants “… often were able to successfully assert as a defense that the state could not prove its jurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in the State statute of limitations.” Because of the nature of animal cruelty, it can be very hard for prosecutors to prove that animal cruelty occurred. Also, in the Miller v. California Case, the court also argues, “a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value" — a burden virtually impossible to discharge under our criminal standards of proof.” As these statements show, this kind of issue is so hard to put as a burden on the prosecutor, and by putting the burden on the prosecutors, it would be too difficult to punish these criminals. Because I think the government has a compelling interest towards the issue, I think it is acceptable to put the burden on the speaker because the U.S.'s general approach of "innocent until proven guilty" may allow many criminals get away if the burden is on the prosecutor in this issue.