Sunday, August 17, 2008

3rd Circuit strikes down law preventing online depictions of animal cruelty

I'm going through my archive of material for stories I meant to circle back and post on. Last month, in U.S. v. Stevens, the 3rd Circuit Court of Appeals ruled that 18 U.S.C. § 48, which prevents online depictions of animal cruelty, did not pass constitutional muster because it violated free-speech laws. The Volokh Conspiracy has a good post on the substance of the case and issue here. The law contained an exception for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." While it's somewhat disheartening that the court would strike down a law that was originally passed to end videos where small animals were being crushed for entertainment, the opinion to me reads as more of a punt to the Supreme Court. The 3rd Circuit was unprepared or thought it lacked the authority to create an exception to the First Amendment that would prevent videos of animal cruelty.

The dissent lays the groundwork for why such an exception should be recognized. David Hudson, a professor at Middle Tennessee State University, discussed the dissent briefly in a recent post at the University's blog:
David Hudson, adjunct political science professor and First Amendment expert, says the dissenting opinion, written by Judge Robert E. Cowen, asserted that “the government could criminalize depictions of animal cruelty because such expression had no social value. Noting that animal cruelty laws have existed in America since 1641, he classified the government’s interest as compelling. Cowan emphasized that the statute contained a provision that protected depictions of animal cruelty having a ‘serious religious, political, scientific, educational, journalistic, historical or artistic value.’”

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