First Amendment rights and the pursuit of animal rights

Kathleen Stachowski  Other Nations

Many decades have intervened since my First Amendment rights were trampled by the FBI. The year was 1970 and Richard Nixon was appearing at the Fort Wayne (IN) War Memorial Coliseum. A group of us from a small, nearby college with a long history of peace activism decided to take in the spectacle; I suppose our clothes and hair tipped off The Man that we weren’t enthusiastic supporters of the Viet Nam war. We were detained, our tickets confiscated “for verification” and never returned.

We were angry. We felt powerless. We returned to school and told our story. It found its way into the Peace Studies bulletin, and that was the end of it. Today, older and wiser and again confronted with a suspected infringement upon First Amendment rights, I knew exactly what to do: Contact the American Civil Liberties Union.   Continue reading

New York Ag-Gag Bill Dies

Douglas Doneson

The New York “ag-gag” bill S 5172, designed to deter meth addicts from stealing anhydrous ammonia overdosed on reason and died today on the senate floor.  Maybe the New York state representatives realized that the majority of meth labs in this country have been outsourced to Mexico.

Or maybe they realized that anhydrous ammonia is primarily used for plant/ soil fertilization and since factory farmed animals are not pasture raised, animal farmers probably don’t have that much NH3 lying around anymore.  Continue reading

New York Ag-Gag Legislation

Douglas Doneson

Florida, Iowa, Minnesota, and most recently New York have introduced bills designed to suppress undercover photojournalism which exposes food safety issues, criminal activity, and the abuses that occur behind the closed doors of the animal agribusiness. Although these bills have slightly different language, each one, if passed would criminalize the act of taking a photograph or videotaping farmed animal facilities without the written consent of the owner.

The justification for New York’s “ag-gag” bill:  Continue reading

Graphic Content

Will Sheehan

Public perception has always played a significant role in the battle for animal rights. Newspapers, publishing houses and television have traditionally served as facilitators–and occasionally unwitting allies–of the movement. Due to the persuasiveness of visual aids, it is clear that the future battleground for the public relations struggle will take place on Youtube and other online media sources. These websites have revolutionized anti-cruelty documentation through the distribution of inexpensive, visceral and uncensored viral videos depicting the inhumane treatment of animals. This has elevated animal advocacy to an unprecedented level.

Continue reading

The Agribusiness Lobby Wins Again

Jacqueline McMahon

Well, there go the rights of farmed animals and whistleblowers in Iowa.  On March 17, 2011, the Republican-dominated Iowa House of Representative voted 65-27 to approve a bill criminalizing secretly recording factory farm practices.  Under the bill, House File 589 § 9, drolly named “Animal Facility Interference,” any person who produces, possesses or distributes an audio or visual recording of an animal facility without the consent of the owner is guilty of either a class D felony or aggravated misdemeanor.  The bill still has to pass through the Democrat-controlled Senate before officially becoming Iowa law, but with similar proposals popping up in other states including Florida, the idea of prohibiting these exposé recordings is picking up steam. Continue reading

Stevens Update — The Content-Based Restriction Debate Continues to Swirl

David Cassuto


Congress has introduced a new bill aimed at suppressing crush videos.  In the meantime, the Court will review another content-based law  — this one aimed at restricting violent video game sales to children.  One wonders how the Stevens precedent will figure into deciding whether this California law is constitutional.  More soon.

U.S. v. Stevens, The Post-Mortem

David Cassuto

There’s little good here.  In Stevens, the Supreme Court struck down a law that aimed at and succeeded in curbing the market for crush videos and other animal mutilation.  To be fair, the law was seriously flawed.  But the Court’s analysis is worse.  However, the holding could have been worse still, so I am at least a little relieved as well as disappointed.

18 U.S.C. s. 48 banned depictions of cruelty “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” if that conduct violates federal or state law “where the creation, sale, or possession takes place.”  It exempted depictions possessing “serious religious, political, scientific, educational, journalistic, historical or artistic value.” 

Mr. Stevens operated a website called “Dogs of Velvet and Steel.”   He marketed videos of dog fighting, of dogs attacking pigs, and other similar works.  One would be hard pressed to find any redeeming social value to his wares and the Court makes no attempt to do so.  In fact it spends very little time analyzing the law as it relates to Mr. Stevens.   It instead focuses on the law’s potential applications to other cases not currently before it.  As a result, the opinion runs far into the weeds.   Continue reading

U.S. v. Stevens — The Decision is In

David Cassuto

And the result is as expected.  The law goes the way off all things.  I shall have more to say on this shortly.

A Goat in Sheep’s Clothing

Kate Blacker

The city of Euless, Texas outlaws killing four-legged animals.  Santeria priest Jose Merced was personally informed about this rule back in 2006 when police knocked on his door and prohibited him from ritually sacrificing a goat.

Speaking as an animal lover and as a vegan, I think this story sounds pretty good.  But there’s more.

Continue reading

Supreme Court Hears Arguments on U.S. v. Stevens

David Cassuto

The Supreme Court heard arguments yesterday in U.S. v. Stevens, wherein the the federal law banning trafficking in illegal depictions of animal cruelty has been ruled unconstitutional by the Third Circuit.  The issues underlying this First Amendment case are complex and multi-layered (see posts here ) and there is much more to say.  Among the issues the Court faces are whether the law unconstitutionally constrains protected speech solely on a content-based basis and also whether animal cruelty rises to the level of a compelling state interest that justifies overriding the presumption in favor of free speech.

Continue reading

Journalists Argue that Criminalizing the Depiction of Animal Cruelty is Counterproductive

A respected association of journalists – the Radio-Television News Directors Association (RTNDA) – filed an amicus brief in the Supreme Court case dealing with whether it is a violation of the first amendment to criminalize the depiction of animal cruelty. David and Suzanne have blogged about the case here and here.

According to the RTNDA, the federal statute will “make it impossible to cover cruelty as news, ironically eliminating the kind of public exposure that helps in the battle against such cruelty.” Along the same lines, counsel for RTNDA explains that:

We don’t take issue with the fact that the goal of preventing crush videos and other animal cruelty is certainly a worthy one, but argue that it is this very interest in protecting animals from abuse that makes speech about their treatment so valuable. The brief points out that media outlets ‘often expose the abuse of animals, participate in the national debate over the proper treatment of them, and cover commonplace activities involving animals such as hunting and fishing.’ But the law compromises the news media’s ability to perform any of these functions without fear of prosecution.

At first glance, the RTNDA concerns strike me as overblown. After all, the federal law at issue contains an exception which states that the ban “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value”. It would seem that this exception saves the statute. The ACLU, however, has argued that it does not, since:

(1) “such exceptions are strictly limited to depictions of sexual conduct, which are not at issue here”,

(2) the exception clause “contains only one prong of the three-prong test for obscenity, and [the Supreme Court] has emphasized that all three prongs must be met before speech can lawfully be prohibited”, and

(3) “[t]he breadth and vagueness of [the exception] will make it impossible for people to know whether their speech will be considered criminal”.

The Humane Society, as one would expect, sees it differently. According to their amicus brief, the Supreme Court should rule that the depiction of animal cruelty is akin to the depiction of obsence sexual acts for the purposes of the First Amendment, given that:

“Although [the Supreme Court has] previously applied its obscenity jurisprudence to materials that appeal to the sexual subset of these base instincts, there is no justification in history or reason for treating materials that appeal to sadistic but (perhaps) not sexual impulses any differently”

I think that the Government and the Humane Society have the better argument here. Depiction of animal cruelty has little or no value. It should thus not be generally worthy of heightened First Amendment protection. On the other hand, in cases that involve the legitimate use of such depictions (e.g., journalistic purposes) it would seem that the aforementioned exception saves the statute. The ACLU’s argument that the exception is impermissibly vague is unconvincing, for it is not vaguer than typical obscenity ban exceptions, which are clearly constitutional.

Perhaps some of our readers – or David – can chime in with their opinion regarding the RTNDA’s contentions.

Luis Chiesa

Free Speech at the Margins — ALDF and Animal Law Profs File Amicus Brief in U.S. v. Stevens

In U.S. v. Stevens, the Supreme Court will decide whether a federal law forbidding depictions of animal cruelty violates the First Amendment.  Suzanne first blogged about the case here.  ALDF and animal law professors from all over the country (of whom I am one) recently filed an amicus brief in this case.  One of the issues before the Court involves whether the Court’s 1993 holding in Church of Lukumi Babalu Aye v. City of Hialeah, striking down a municipal ordinance banning animal sacrifice (primarily because it targeted the Santeria religion), stands for the principle that animal cruelty cannot rise to a compelling state interest.  We argue that it does not.  I have written about the Lukumi case at some length and you can find it here.

I will have more to say about the Stevens case in the near future.  In the meanwhile, here’s a good post from ALDF.

–David Cassuto