Veracity Radio

To read the many headlines this week on the Supreme Court decision regarding animal abuse videos, you’d think that the justices had personally stopped on little kittens and bunnies for their own sexual amusement. A quick scan of most of the headlines read:
-Supreme Court Overturns Animal Cruelty Conviction (NewsReleaseWire.com)
(Robert Stevens wasn’t convicted of animal cruelty. He was convicted of distributing videos which were collections of existing dog fighting videos from the 60s, 70s, and from Japanese videos. He was not charged in relation to any production of the original videos in any way. Additionally, the conviction had already been overturned, this was a decision that reviewed the appeal. This is called a Write of Certiorari, where SCOTUS calls on a lower court to review their decision)

-Supreme Court says fetish videos depicting animal cruelty deserve free speech protections
12:00 AM CDT on Wednesday, April 21, 2010 (McClatchy)
(Completely false. The court said no such thing.)

-Top US court protects animal cruelty images as free speech (AFP)
(Sweeping and thus misleading. The Court actually found that the language in the state was to broad to effectively prosecute without leaving too much in the hands of prosecutors to decide what constituted abuse, depiction, and the conditions under which the video was filmed or the animal was harmed related to the film.)

-The Supremes’ film review: 8-1, animal cruelty films are free speech (Justice Alito gives them a thumbs-down) (LATIMES OP-ED)
(Again, not the case. There was no such sweeping comment in the decision. The focus was on how broad some of the terms were in the statute and how the government asserted its case.)

-SCOTUS Strikes Down Animal Cruelty Law (AM Law Daily)
(Techinically correct, but doesn’t show why. This leaves the reader, if they don’t catch all or any of the article, to conclude that the decision was based on animal cruelty instead of broad language in the statute.)

Then there is the sort of neutral stance:
-Supreme Court overturns law banning animal cruelty videos
(Getting warmer. But the winner for best headline slug will need to be better than this.)

But then there was NPR:
Supreme Court Calls Animal Cruelty Law Too Broad – Nina Totenberg
(And this week’s winner is Nina Totenberg, though I might have missed some others like this.)

So…what’s the point? Only the NPR title actually tells you in one slug what the story is. The rest do not. They lead to a conclusion that is not inline with the actual case or opinion. I think the worst one in this list was “SCOTUS Strikes Down Animal Cruelty Law” because it didn’t even let you know there is a video tape side of this or that the court argued about language used to craft and prosecute under the statute.

These things matter when the public reads articles to learn what the courts decide. The irresponsible headlines are often the work of editors in position of power, so why would they dumb down the language to such an obscure level that renders a reader virtually inept to describe what happened? I had to completely rewrite this article because I started my view based on the collective articles. Even in the articles you can’t often tell on what grounds the court based its opinion.

All day yesterday my mail and my wife’s facebook (I don’t really facebook well) were filled with people upset that the Supreme Court was so willing to personally stop kittens, puppies and rabbits to death under with their black robed stilettos. Only Samual Alito appeared to be willing to stand up for the poor little animals.

I understand the court’s decision and even Alito’s dissent. But this story is about how the news media’s irresponsible headlines and narratives are preventing readers from understanding the case and thus the decision.

For those who don’t know, I’ll summarize the case. Robert Stevens made a film about pit bull fighting. It was found to have violated the 1999 law intended to make “crush videos” illegal. A ‘crush video’ features a woman in stilettos killing a small animal with them for some sick sexual pleasure. Clearly as a society we believe this to be highly criminal. But because of the way the law is actually written, Mr. Steven’s film was in violation because it too showed violence towards and among animals. He had not had any part on the original manufacture or production of these videos but had compiled videos from the 60s, 70s and older Japanese fighting videos.

He was convicted under the 1999 federal statute and the conviction was overturned by the Federal appeals court when (Roberts: “Stevens moved to dismiss the indictment, arguing that §48 is facially invalid under the First Amendment.”).

Here’s the statute:

TITLE 18 > PART I > CHAPTER 3 > § 48

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§ 48. Depiction of animal cruelty

How Current is This?

(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. (emphasis mine)

(c) Definitions.— In this section—

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and

(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

The Supreme Court then issued a writ of certiorari. This is a request sent to lower courts to review settled cases for constitutional concerns.

When Congress writes laws, the final bill is usually filled with the language and perspectives of the many lawmakers, staffers, and lobbyist who influence the bill. The bills usually follow discovery of some specific problem in our society, in this case the mutilation of animals in “crush videos”. Inevitably in every bill will be loopholes or areas where even in the most perfect moment of a purely noble intention the law will have side effects that were not realized during drafting. The Supreme Court exists entirely to review the constitutionality of these final laws and the execution by the executive branch.

In this case the argument is rendered by Roberts for the majority and Alito as the lone activist judge. If I had to summarize the two views in a single sentence, and thus the case, Roberts is saying, “words matter.” to Alito’s “we know what they meant, close enough.” approach.

Roberts points out that portions of the language in the bill are clear and unambiguous while others are not nearly as clear as you might think. And while the intent of the prosecutor was to end a terrible act, but put in the context of a case, they often gave too much subjective discretion in determining the “value” of what is expressed in these “depictions”:

“The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
“As a free-floating test for First Amendment coverage,that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balanc-ing of relative social costs and benefits.”

The Government argued much of its case based on previous opinions from the court that seemed to categorize speech that wasn’t protected, one example is Chaplinsky which is the “fighting words” example. Roberts contends that the court has never created categories of First Amendment exempted speech but described their decisions  and such descriptions do not become law:

“But such descriptions are just that—descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.

When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis.”

To cut to the chase, Roberts points to Ferber and says in this case the government showed that child pornography videos were  “intrinsically related” to the crime itself and thus “an integral part of the production of such materials, an activity illegal throughout the Nation.” but that this decision does not “establish a freewheeling authority to declare new categories of speech outside of the scope of the First Amendment.”

Here’s the key portion, from my view:

“Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet beenspecifically identified or discussed as such in our case law.But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.

III Because we decline to carve out from the First Amendment any novel exception for §48, we review Stevens’s First Amendment challenge under our existing doctrine. “

This law should be rewritten and the accepted assumptions examined by the staffers and reps. This is a great exercise in our democracy’s integral systems. In this case, the system worked. You might criticize Robert Stevens for his interest in dog fighting, but to prosecute him, you’ll have to write laws intended to stop dog fighting and not use some blanket law that can just as easily become precedent for other speech cases.

In the end, this is not as much a decision about dog fighting as it is about statutory language and free speech rights. The extension of concern in this case isn’t entirely about Stevens but how the government would be allowed to create a “free floating” standard for judging what it sees as offensive. Congress got close, even by the justices admissions, but too much was left unspecified that can create a conflict with Constitutionally protected expression.

If the populace cannot understand why the Supreme Court renders particular decisions, confusion arises, confusing policy clashes ensue, and time is wasted in outrage instead of a focused attempt to clarify the law with better language and model.

To read the stories, you’d think that these cold blooded justices just told us all, “its ok to kill little animals and film it because that’s free speech”, when nothing of the kind is in these opinions.

Congrats to NPR and others who got it right, and shame on the lazy, narcissistic news sources who yet again duped their own readers. No wonder people thought there was WMD in Iraq.
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