Sherry F. Colb

Lessons From an Animal Cruelty Case In the U.S. Supreme Court

By SHERRY F. COLB
Monday, August 3, 2009

Late in the Supreme Court's recent term, it agreed to review the ruling in United States v. Stevens, a case in which the U.S. Court of Appeals for the Third Circuit invalidated a federal statute, Section 48 of Title 18 of the U.S. Code. The statute, with some exceptions, bans the possession, creation, and distribution of depictions of unlawful animal torture when there is an intent to place the depiction in interstate commerce.

The court of appeals reversed the conviction of Robert J. Stevens under this law and held that the statute violates the First Amendment right of Free Speech. In this column, I will consider the conduct that originally gave rise to the statute and the broader implications of the economic and social arguments for its First Amendment validity.

Crush Videos and Congress

In 1999, Congress passed the statute at issue in response to a phenomenon, known as the "crush video," which was brought to Congress's attention. In a crush video, a woman inflicts torture and a slow death on animals by crushing them with her feet. The animals include mice, guinea pigs, rats, squirrels, chickens, hamsters, cats, dogs, and monkeys, who are taped or tied to the floor so they cannot escape. The woman reportedly talks like a sexual dominatrix to the animals, while the animals cry and scream in agony until they finally die, reduced to a "bloody mass of fur." Crush videos evidently appeal to people with a sexual fetish for the torture and killing of animals.

The defendant in the particular case coming before the Court did not take part in the crush video trade. Instead, he distributed videos showing pit bulls engaged in bloody dog fights and viciously attacking other animals, both illegal activities in all 50 states. He was found guilty of three counts of knowingly selling the depictions of animal cruelty, with the intention of placing them in interstate commerce for commercial gain.

In convicting Stevens of the charged offense, the jury had to find that the materials he distributed did not qualify under the statutory exception for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value," a list that resembles – but includes more items than – the test that takes speech out of the category of unprotected "obscenity" under Miller v. California. Remarking on the obscenity analogy, the district court observed: "if the government has a sufficiently compelling interest in prohibiting the sale of depictions of sexual activity between consenting adults, it has an equal, if not greater, interest in preventing the torture, maiming, mutilation and wanton killing of animals who have no ability to consent to such treatment."

Elaborating on the vulnerability of animals, as compared to consenting adults, the district court also invoked New York v. Ferber. In Ferber, the Supreme Court upheld the criminalization of child pornography, on the ground that the availability of such material – and the demand for it – economically motivates the victimization itself, which is often difficult to track down and prosecute. Because of this difficulty, prohibiting the violence alone makes for an incomplete approach to the underlying problem.

I suspect that most, if not all, readers find the idea of crush videos morally troubling and disgusting. Indeed, even supporters of Mr. Stevens have attempted to distinguish his videos of blood sport from crush videos, the latter of which seem more difficult to defend, in part because they fall so readily within the existing law of obscenity and constitute a far more "patently offensive" subcategory within that classification.

In this column, I will focus on three aspects of the argument that crush videos and dog-fight videos are unprotected speech, and examine some implications of the argument for another area of moral inquiry: the consumption of animals and animal products.

Vulnerable Victims Worthy of Consideration

Consumers of animals (e.g., pigs and chickens) and animal products (e.g., cheese and eggs) often cite their belief that an animal is not as intelligent as a human being. They suggest that they would never eat a gorilla or a chimpanzee, but cows, chickens, turkeys, and fishes lack language and a cognitive system like ours and accordingly may be killed for food. Other people stop eating pigs and cows, because they are mammals as we are (and therefore "superior") but continue consuming birds and fishes (or fishes alone), on the same intelligence-based rationale. The implicit assumption is that less intelligent creatures are accordingly less entitled to moral consideration.

Assuming that people are indeed "smarter" than all other animal species, there remains a flaw in the argument from intelligence. As animal behaviorists have shown us, the capacity to suffer and to fear death does not require great intellect or complex cognition. In fact, suffering in the absence of understanding can be that much greater. Just think about how difficult it is to console an infant in pain who cannot be made to comprehend why he suffers or when (or that) the pain will end.

That said, it is unclear that it would provide much comfort to a cow to understand the great purposes for which she is kept almost constantly pregnant, with each of her beloved newborns taken from her every time she gives birth, and for which she – when her milk production drops off – is ultimately taken to a bloody room filled with the screams of her fellow animals, hoisted upside down, and cut until she bleeds and chokes to death, frequently conscious and writhing the whole time.

It is rare to read a court opinion referring to animals with the word "who," as the district court does, rather than "that." In acknowledging the pain of animals tortured to produce an exciting show (whether sexual or not) – with pronouns and the content of the opinion – the district court suggests that the vulnerability of animals makes them especially entitled to our moral concern. Likewise, Andrew Linzey makes a powerful moral and theological argument along these lines against our current treatment of nonhuman animals in Why Animal Suffering Matters. This approach suggests that animals' lesser intellect does not support our consumption of them as food. Animals' vulnerability, moral innocence, and inability to give "consent" to our uses of them, instead, call for compassion and extra solicitude on our part.

A Market in Suffering and Who is to Blame

The defendant in the Supreme Court case suggests that it is not necessary to prohibit the commercial distribution of videos showing animal cruelty, because there is a non-speech-related method of addressing the harm more directly – namely, by prohibiting the cruelty itself. In fact, the statute at issue in the case only applies to conduct that is already illegal in the place where the commercial possession, creation, or sale takes place. What, then, does banning the commercial depiction of the cruelty add, other than a speech-specific prohibition that is content-based (i.e., there is no ban on depictions of animal joy or peace)?

One answer, provided by both the district court and the government, is that "the creation, sale, or possession of depictions of animal cruelty for profit provides an economic incentive for such conduct." That is, the reason (or at least one reason) that some people spend their time, energy, and money subjecting animals to excruciating pain and death in front of a camera is that other people are willing to spend their money on the product created by the videotaped pain – a crush video or a blood-sport video.

It is, in other words, the economic demand for the product of the torture – the video – that motivates, or multiplies the motivation for, conducting the torture in the first place. To understand the role of demand in driving the underlying conduct is to recognize that someone who purchases crush videos or dog-fight videos is in reality an accomplice in the torture and, in some respects, as blameworthy as the torturer herself, who acts to fulfill the desires of her customers.

This recognition forms the foundation of child pornography legislation – and its validity under the First Amendment, as explained in New York v. Ferber: To address the commercialized sexual abuse of children, it is necessary to attack the market that feeds the filmed abuse, rather than merely prohibiting the abuse itself.

Consumers of animals and their products, some of whom would never themselves personally inflict violence on animals, often miss this basic economic insight about supply and demand. I have heard people speak in outrage about the torture of the animals who live and die in the production of food, even as the same critics eat their fish sandwiches, burgers, and sausages, consuming the products of the conduct they condemn, believing consumption to be insignificant because the animals are already dead.

Industries do not, however, abuse animals for fun (though some of the people working in such industries either are sadists or eventually become sadistic in their roles). They do it because each individual consumer puts down her money at the cash register and thereby communicates the message, "Kill more chickens, turkeys, cows, pigs, and fishes; kill many of them in an efficient manner so I can affordably eat lots of my favorite foods; do what it takes to make that possible."

Sex Versus Other Pleasures in Justifying Suffering and Death

Some people who hear about crush videos are especially offended by the fact that people want to masturbate to the torture of sentient animals. What could be more debased than catering to the proclivities of a sexual sadist? Because the fetish to which the material caters is so worthless and disgusting, it seems to many people, it cannot possibly be legitimate to create crush films to satisfy it. To justify the torture and killing of animals requires that they be necessary to serving some "higher" purpose, and the cravings of a person aroused by animal suffering do not qualify as such.

The category of obscenity, unprotected by the First Amendment, includes as one criterion that "it must be established that the dominant theme of the material taken as a whole appeals to a prurient interest in sex." This criterion of obscenity supports the notion that the involvement of sexuality may reduce the status of what might otherwise be worthless and patently offensive but nonetheless constitutionally-protected speech. The category of child pornography, also unprotected by the Constitution, includes an obvious sexual component as well – pornography consists of sexual media, by definition. However, is the sexual aspect of these categories truly essential to their legitimacy?

Imagine that some people found it viscerally, but not sexually, exciting to view children being beaten and tortured. If these people comprised a large enough group, an industry of child torture films might develop as a result, to meet the demand. Though Ferber is a case about child pornography, its underlying economic logic goes further. Concern for vulnerable victims whose victimization is a direct response to market demand by viewers would, I suspect, place child torture videos in the same (or a related) category of speech that may be prohibited and punished because the harm it inflicts is so much greater than any benefit that might be derived from it.

If I am right about the hypothetical "child torture" genre of film, then the Court might well see its way to classifying films of blood sports like pit-bull fighting together with the already-obscene crush videos. In both cases, people inflict terrible suffering on helpless and vulnerable animals who cannot "consent" (just as a child cannot consent to sexual use). And in both cases, it is the audience for the "excitement" (whether sexual or not) – aroused by watching the violence – that fuels the cruel acts in the first place. To address the violence and cruelty, in other words, it is necessary to do something about the purpose of the cruelty, which is to satisfy audience demand for the videos.

If an audience derives pleasure from watching torture, then – in the absence of a deterrent – someone will come along to give the audience what it wants. And my understanding of contemporary values suggests that most people would not view the pleasure obtained from watching dogs tear each other apart a sufficiently weighty objective to justify the infliction of torture on these animals (or the horrifying way in which "used up" dogs are later killed).

As I discussed in connection with the moral relevance of animal vulnerability and the role of market-demand in motivating cruelty, the pleasure justification for crush videos and dog fights has an important lesson for discussions of meat, dairy, and eggs as well.

I have had conversations with people who claim to detest cruelty to vulnerable animals and who say they would not personally hurt an animal unless it was absolutely necessary. Yet they consume the products of animal agriculture. Why? Some say it is because animals are inferior for lacking human intelligence. Some say it is because other people torture and kill the animals who are already dead by the time of purchase. Still others say that one needs food to eat and therefore, that registering a demand for animal cruelty by eating animals and the products of their suffering is qualitatively different from registering a demand for animal cruelty by purchasing a crush video or a dog fight video. No one needs to watch crush videos or dog fights, they say, but everyone must eat.

The argument distinguishing flesh, dairy, and egg consumption from watching videos depicting animal abuse has a surface appeal. For one thing, people who eat animal products do not ordinarily enjoy or even dwell on the fact that they are directly motivating others to inflict suffering and death on animals. On the contrary, a typical response to information about this suffering is, "Don't tell me. It'll ruin my meal." To the extent that one views "intentional" harm differently from "knowing" harm, this distinction might carry some weight in assessments of relative culpability.

The distinction does not, however, provide an argument that demanding the torture and killing of animals for food is justified. Though the motivation may not be as debased as the desire to see dogs fight, or the desire to see animals crushed to death by a dominatrix, the reason for demanding these products is still a particular kind of pleasure – that derived from consuming cows, chickens, turkeys, and fishes – that is both unnecessary and easily replaced with far more benign, comparable pleasures.

Eating is necessary, of course, just as the release of sexual tension and the alleviation of boredom are necessary (or, at least, very important). It does not follow, however, that eating animal products is necessary – either for survival or for culinary pleasure, any more than torturing animals is necessary to people's experience of sexual pleasure or to the relief of their boredom. Pleasure in the abstract is a worthy objective, but the fact that one prefers the taste of a pig's or a cow's flesh or a calf's mother's milk or a chicken's egg more than the taste of the fare at a vegan feast cannot – by dint of the "One needs to eat" point – redeem the agony that we force on animals.

What These Forms of Deviance and "Normalcy" Share: Unjustifiable Harm

Crush videos represent an apparently deviant phenomenon that most people see for the worthless display of violence that it is. But an honest examination of what makes such videos wrong exposes the truth about the far-from-deviant use of animals for food. The consumption of animals and animal products inflicts unimaginable pain and terror on billions of vulnerable, defenseless, and innocent beings. It implicates every consumer of animal products, because consumption is what drives the conduct. And it rests on nothing more elevated than a personal preference for the flavor of flesh or dairy.

If crush videos cannot be justified by the pleasure they give their audiences, then neither can a trip to the supermarket at which we purchase what was once a living, breathing animal who did not want to suffer and die.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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