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McDonald Publishes Op-ed on Supreme Court Ruling in the Daily Journal

Barry P. McDonald, professor of law, published an op-ed on the recent Supreme Court ruling striking down the federal law banning the commercial production or sale of animal cruelty videos. The op-ed ran in the Los Angeles and San Francisco editions of the Daily Journal.

McDonald, who has taught at Pepperdine since 2000, is a recognized scholar in the area of First Amendment law. He has published several articles and essays on the law governing freedom of expression and religion in such prominent journals as the Emory Law Journal, Northwestern University Law Review, Notre Dame Law Review, Ohio State Law Journal, and Washington & Lee Law Review. He teaches courses in constitutional law, First Amendment law, and intellectual property law.

Putting Congress Between a Rock and a Hard Place

by Barry P. McDonald

The Supreme Court did a disservice to our commitment to free speech in America by getting at least two things wrong in its opinion last week striking down a federal law banning the commercial production or sale of animal cruelty videos.

First, the Court unnecessarily struck down the law as being too broadly written. The law was created to give prosecutors the tools to deal with a commercial trade in two ugly types of videos: so-called "crush" videos where small animals such as kittens are stomped to death to satisfy a human sexual fetish, and brutal animal fighting videos (most commonly involving dogfighting). However, the law was not a model of careful drafting. On its face it could be interpreted to cover hunting and other videos not necessarily depicting the types of cruelty to animals it was designed to address. But as normally-conservative Justice Samuel A. Alito Jr. persuasively argued in dissent, the Court, as it has on other occasions, could have interpreted the law narrowly to not cover such videos but declined to do so.

Sending Congress back to the drawing board to clarify an ambiguous law might make sense in many cases. It forces that body to think carefully about how it writes law and, hopefully, avoids infringing on constitutional rights. But as Justice Alito lamented, such an exercise is less warranted in cases where the absence of a valid law will result in substantial harm, as in this case where the legal vacuum that has been created by the courts has resulted in the resumed production and sales of crush and dogfighting videos.

Second, and, in my view more importantly, the Court unnecessarily held in its decision that it would not create a new category of unprotected speech for depictions of animal cruelty akin to similar unprotected categories it has already recognized for such "low value" expression as child pornography or obscene adult pornography. In so holding, the Court effectively adopted a new rule saying that no additional categories of unprotected speech would be recognized unless it could find a history and tradition in this country that a given type of expression was treated as lacking constitutional protection. This ruling was unnecessary because the Court had already decided to invalidate the challenged law based on the perceived problems with its drafting. Moreover, in my view, it was also unwise because novel and unforeseen forms of future human expression that may require government regulation will presumptively receive strong constitutional protection. The animal cruelty videos at issue in the case are a prime example.

And to exacerbate this misguided approach, besides ruling that there was no history that animal cruelty videos lacked constitutional protection in this country (ignoring the fact that they are a relatively recent phenomenon), the Court utterly failed to address Justice Alito’s argument that such videos indeed fall within the same unprotected category of speech as child pornography. As he pointed out, the Court had previously ruled that child pornography videos lack constitutional protection because such expression is integral to the commission of a crime—children are sexually abused in order to satisfy a market for such videos. Much the same can be said for animal crush and dogfighting videos. In the case of crush videos, animals are brutally killed to satisfy a market for such videos, and in the case of dogfighting videos, dogs are killed or maimed in part to produce videos that serve as an important revenue-producer for an illegal underground industry.

By declining to treat animal cruelty videos as unprotected expression under its novel "history and traditions" approach on this issue, the Court was effectively saying that it would henceforth assess the constitutionality of any new attempts by Congress to more precisely regulate animal cruelty videos under its rules for fully protected speech. But those rules usually forbid the government to single out particular types of content for regulation on the theory that the government may use such power to illegitimately censor speech rather than address legitimate harms it may cause. And Chief Justice John G. Roberts Jr., far from "suggest[ing] that a narrower statute targeting crush videos might be constitutional" as the Los Angeles Times stated in an editorial, actually signaled that such a statute would be held to normal standards. He did so with a bold declaration (which the Court is fond of quoting in decisions striking down commercial pornography regulations) that, "[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." Indeed, in the many cases where the Court has applied these rules, it has never upheld a speech restriction that singles out particular content for regulation. Hence, if anything, the Court was saying to Congress that any new law it passes will probably be held to be a violation of the First Amendment.

So Congress now appears to be between the proverbial rock and hard place on banning the commercial production and distribution of crush and dogfighting videos. In another editorial extolling the virtues of the Court’s decision, the New York Times opined that this is the right course of action since the government should go after the animal cruelty itself rather than videos of it (the oft heard "punish the conduct and not the speech" argument). As Justice Alito argued, the problem with this argument when it comes to dogfighting, and especially crush videos, is that it is notoriously difficult to determine and prosecute those responsible for making them in the first place. It is not as if their makers are anxious to film their own faces as they stomp or gore shrieking kittens to death.

On the whole, then, I believe that far from promoting values of free speech as the major newspapers would have readers believe, the Court’s decision actually disserves those values. For how committed will a society remain to protecting a freedom of speech that allows such kinds of "speech" to flourish?

Published with permission from the Daily Journal.