Today's Supreme Court decision

The U.S. Supreme Court today reversed a federal law that prohibited the sale of videos depicting "cruelty to animals," a law which,  as Justice Roberts noted in his opinion, "was so broadly written that it could include all depictions of killing animals, even hunting videos."

From today's Washington Post:

Supreme Court voids law aimed at banning animal cruelty videos

By Robert Barnes
Washington Post Staff Writer
Tuesday, April 20, 2010; 11:48 AM 

The Supreme Court struck down a federal law Tuesday aimed at banning videos depicting graphic violence against animals, saying that it violates the constitutional right to free speech

Chief Justice John J. Roberts Jr., writing for an eight-member majority, said the law was overly broad and not allowed by the First Amendment. He rejected the government's argument that whether certain categories of speech deserve constitutional protection depends on balancing the value of the speech against its societal costs.

"The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits," Roberts wrote. "The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."

The law was enacted in 1999 to forbid sales of so-called "crush videos," which appeal to a certain sexual fetish by depicting the torture of animals or showing them being crushed to death by women with stiletto heels or their bare feet. But the government has not prosecuted such a case. Instead, the case before the court, United States v. Stevens, came from Robert Stevens of Pittsville, Va., who was convicted and sentenced to three years in prison for videos he made about pit bull fighting.

Animal rights groups and 26 states had joined the Obama administration in support of the 1999 law. They argued that videos showing animal cruelty should be treated like child pornography rather than granted constitutional protection

But Roberts said the federal law was so broadly written that it could include all depictions of killing animals, even hunting videos. He said the court was not passing judgment about whether "a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional.

Justice Samuel A. Alito Jr. was the lone dissenter.

"The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes," Alito wrote

David Horowitz, executive director of the Media Coalition, said in response to the ruling: "We are gratified that the justices soundly rejected the government's invitation to create a new exception to the First Amendment. As today's ruling demonstrates, if the Court were to rewrite the First Amendment every time an unpopular or distasteful subject was at issue, we wouldn't have any free speech left. We continue to believe that animal cruelty is wrong and should be vigorously prosecuted, but as the Court today found, sending people to prison for making videos is not the answer.

The Media Coalition is an association that defends First Amendment rights and represents U.S. publishers, booksellers and producers and retailers of movies, videos, video games and other recordings.

The Humane Society of the United States said it was disappointed by the ruling but found hope in the majority's statement that it was not deciding whether a narrow statute targeting "crush videos" might be constitutional.

"The Supreme Court's decision gives us a clear pathway to enact a narrower ban on the sale of videos depicting malicious acts of cruelty, including animal crush videos and dogfighting," Wayne Pacelle, president and chief executive of the Humane Society of the United States, said in a statement. "Congress should act swiftly to make sure the First Amendment is not used as a shield for those committing barbaric acts of cruelty, and then peddling their videos on the Internet."

Sounds like a pretty sane decision to me . . . although it is unfortunate that the Washington Post sees fit to give Wayne Pacelle and the HSUS the final word on the subject.

Wanton Waste and Going Above and Beyond Beyond Fair Chase: Part Two

I have decided to move this response to comments made in the original thread out to the main page (a) my response grew to a more substantial length than I intended and (b) because I'm likely to stir up some more trouble. ☺

In his thoughtful comments on the original thread, Tovar wrote:

“While I can sympathize with you pro-freedom arguments, Jim, I’m concerned by where they seem to lead.

“Are you arguing that humans should be legally permitted to shoot animals simply because they want to, without any other purpose being required and without any obligation to track a wounded animal or make use of its body? If so, would you have this legal permissiveness extend to the treatment of all game animals, including big game? Going back to your point about lights and rifles and coyotes above, would you argue for the legalization of all forms of hunting for which there is a cultural precedent?

“Personally, I don’t think we can leave everything to the dubious normative power of the so-called 'hunting community' any more than we can leave all choices regarding the treatment of companion animals to pet owners.

“At some point, when the behavior is sufficiently egregious, the law has to step in.”

Let me preface this by saying that I too find the example previously given of the hunters' not even bothering to pick up the hares morally abhorrent. I would not choose to hunt with those individuals, and if he/they were in my social circle of hunters I would engage in every method of subtle and not-so-subtle psychological persuasion to affect a change in that behavior—ridicule and social ostracism have worked well for me in the past. ☺

With that said, let me reiterate that the specific (and more narrow) point I am making is about “legal moralism”—the idea that we should legislate morality. I am very, very uncomfortable with legislating morality, and I fear that the legislation of morality is potentially more immoral than the behavior such legislation seeks to regulate.

An example may illustrate:

Years ago in Maine one of the owners of the camp where we were staying told us about a group of (non-resident) hunters who come to her camp every year from out of state specifically to hunt trophy deer.

When these hunters are successful and bag their big-racked bucks, they remove the head and cape and leave the rest of the carcass in the woods. In other words, they leave every ounce of edible meat to rot in the woods, but take their trophies home.

Should such behavior be made a criminal violation? While I find the leaving of the carcasses in the woods to be equally morally abhorrent as the example of leaving the hares in the woods, I do not think that necessarily we should make these hunters’ actions illegal. They have paid for their hunting licenses; they have obeyed the season laws, tagging regulations, etc. etc., and they are entitled to take what they have paid for after going through the mechanism of buying their hunting license.

You may disagree. I myself am uncomfortable with this conclusion. But now let’s alter the scenario:

These out-of-state hunters come to Maine. They kill big-racked bucks. But this time, they take all the meat but leave the heads and 14 point racks in the woods to rot. Now what do we think?

My guess is that many if not most hunters would now applaud them for their ethically enlightened “use of the resource” and for eating what they kill, even though they chose to leave the trophy heads in the woods to rot.

Why the inconsistency? Again, in both scenarios the hunters have paid for their hunting licenses; they have obeyed the season laws, tagging regulations, etc. etc., and they are entitled to take what they have paid for after going through the mechanism of buying their hunting license.

I am uncomfortable with using the LAW to enforce what is fundamentally a private ethical issue of conscience. One wag says that using the law to legislate morality is like using fireplace tongs to remove an eyelash. I agree that it is a waste to leave EITHER meat or trophy head in the woods, but neither hunter’s choice harms me in the end when all is said and done.

Eric avers, “I agree this type of dis-honoring the hunted animal should be illegal.” Well, when I go to the deer butcher and see 55 gallon drum after drum filled with spikehorns and scrawny 4- and 6-point deer heads, is this not also a type of dis-honoring the animal? Should not this disrespectful waste of deer heads be made illegal as well?

Well okay, then. I think we should have a law MANDATING the honoring of every deer killed in America by having the head mounted by a qualified taxidermist. That would be the One, True, Correct Way to Honor Deer.

In a very interesting article, philosopher Julia Driver discusses what she calls hyperactive ethics. “Those who do go about trying to impose their moral will on others too much are what I call morally hyperactive,” she writes.

The problem with hyperactive ethics as she sees it is a form of moral zealotry, a self-righteous type of moralism that sees the world in black and white terms and where the moral zealot is always right.

"The problem of moral zealotry is not even restricted to ethics. It can crop up in any evaluative context. Tolerance is expected of others' aesthetic views; or views about their research; or how they bake cakes. For example, even if you feel very strongly about lasagna and the proper way to cook it, you will probably restrain yourself from criticizing your neighbor's favorite lasagna recipe. However, the problem is more acute for ethics, because moral reasons are thought to have a special over-riding quality. Thus, whenever one believes something immoral is going on, the commitment to speak out, to be aggressive, to do something dramatic about it is much more urgent than if one is simply convinced that mixing scallions in with ricotta cheese is a culinary abomination."

Driver says we must resist the temptation to be aggressive and that we must do our best to cultivate tolerance even for beliefs or behaviors that we find morally abhorrent. Why should we do this? Because the harm done by legislating morality is potentially greater than the original immoral act itself.

Driver writes:

"How then can the liberal tolerate and protect immoral and illiberal behavior? The answer, I think, will have to do with the costs imposed by the interference itself. Racism, for example, is immoral and should be discouraged. However, the state arguably should not coercively restrict racist speech, because this represses free speech. So the liberal believes that the state should be restrained in coercively condemning racist speech, in a limited way--though it is perfectly permissible for the state to discourage hate speech (by paying for anti-racist programs in state schools, for example). This limited form of toleration does not undermine liberal values, because restrictions on speech would make things worse."

So I want everyone to be very clear here about what my argument actually is: I am emphatically NOT arguing that sluicing bunnies or deer in the woods and leaving them to rot is morally, ethically, or aesthetically okay. It is definitely not okay, just like racist speech is not okay. But that's different than saying there ought to be a law against racist speech.

I simply don’t think that we should always expect the law to do the work of persuasion that we ourselves should be engaged in. The law is a very blunt tool where something more like surgical precision is required.

Because otherwise we should all also be arguing for the mandatory taxidermy of deer heads and all other animals that are hunted as the One True Correct Sure-Fire Means of guaranteeing that hunters will always honor the animals they kill.

***
Driver, Julia. 1994. "Hyperactive Ethics." The Philosophical Quarterly 44 (174):9-25.