Animal Cruelty and Freedom of Speech by Abigail Perdue

Author:Abigail Perdue
Language: eng
Format: epub
Tags: Animal Cruelty and Freedom of Speech: When Worlds Collide
ISBN: 9781557536334
Publisher: Purdue University Press
Published: 2014-04-30T04:00:00+00:00

II

The Government’s primary submission is that §48 necessarily complies with the Constitution because the banned depictions of animal cruelty, as a class, are categorically unprotected by the First Amendment. We disagree.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal is intentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation omitted).

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942).

The Government argues that “depictions of animal cruelty” should be added to the list. It contends that depictions of “illegal acts of animal cruelty” that are “made, sold, or possessed for commercial gain” necessarily “lack expressive value,” and may accordingly “be regulated as unprotected speech.” Brief for United States 10 (emphasis added). The claim is not just that Congress may regulate depictions of animal cruelty subject to the First Amendment, but that these depictions are outside the reach of that Amendment altogether—that they fall into a “‘First Amendment Free Zone.’” Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987).

As the Government notes, the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies. Reply Brief 12, n. 8; see, e.g., The Body of Liberties §92 (Mass. Bay Colony 1641), reprinted in American Historical Documents 1000–1904, 43 Harvard Classics 66, 79 (C.

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