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Tom Head

If Animal Cruelty Isn't Obscene, What Is?

By October 5, 2009

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Tomorrow, the Supreme Court will hear opening arguments in United States v. Stevens. At issue, as explained by About.com: Animal Rights guide Doris Lin, is 18 USC Section 48, which reads:

Title 18 USC, § 48. Depiction of animal cruelty

(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.

(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.

I would expect the Court to ask two questions: Does this law serve a compelling interest, and does it use the least restrictive means possible to meet that interest?

My suspicion is that the law will meet that standard, but a more interesting question to me is whether animal cruelty videos, marketed for obvious sexual purposes, would qualify as obscene.

I've been following the Roman Polanski situation lately, and in the course of my reading ran across this very wise statement from his late wife Sharon Tate:

I honestly don't understand the big fuss made over nudity and sex in films. It's silly. On TV, the children can watch people murdering each other, which is a very unnatural thing, but they can't watch two people in the very natural process of making love. Now, really, that doesn't make any sense, does it?

The Supreme Court's definition of obscenity has conventionally been limited to content of a sexual matter, while violent content, even violent content intended to appeal to twisted sexual impulses, has not historically been regarded as obscene. But the word "obscene" has to do with the way material is perceived, not sexual content; it comes from the Latin root obscaenus, meaning "ill-omened." And the Supreme Court has historically held that obscene content is not protected speech.

The trouble I see is that if we live in a world where graphically violent content intended and marketed to appeal to sexual sadism is not regarded as obscene, but video of two people having consensual sex is, then it's reasonable to question our priorities. The short-term answer the Supreme Court will most likely provide in the Stevens case is that the law is acceptable because it serves a compelling government interest. But the more long-term question is what content still qualifies as obscene rather than merely indecent, and how (or if) the Court should make a distinction between the two.

The current definition of obscenity, taken from Miller v. California (1972), holds that material that is not of a sexual nature cannot, by definition, be considered obscene--that violent content such as animal torture videos, for example, cannot be considered obscene even if it is created to appeal to a prurient interest. The Miller standard reads as follows:

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I find this unsatisfactory for many reasons. I'll suggest new wording in a later blog entry, but first I want to hear from you. In a paragraph or less, tell me: How would you define obscenity?

Related: The First Amendment: Text, Origins, and Meaning


October 9, 2009 at 6:05 pm
(1) Daniel says:

I think it is too much of a slippery slope to outlaw the depiction of violence. However, I see no problem with outlawing certain acts, such as assaults, battery, or cruelty to animals. “No animals were (actually) harmed during the making of this movie.”

October 9, 2009 at 10:27 pm
(2) David Yett says:

Although it is hard to see the kind of material discussed here as having “redeeming social value,” I am still very uncomfortable with any use of force to prevent publication of possession of anything. The First Amendment means just what it says: “Congress shall make NO law.”

BTW, I don’t know where Tom got his definition of obscene, but it doesn’t agree with most of my dictionaries. From Babylon: adj. vulgar; improper, indecent (especially of sexual indecency); profane. From Concise Oxford Thesaurus: adjective
obscene literature: PORNOGRAPHIC, indecent, smutty, dirty, filthy, X-rated, Ďadultí, explicit, lewd, rude, vulgar, coarse, crude, immoral, improper, off colour; scatological, profane; informal blue, porn, porno, skin. Etc., etc.

October 10, 2009 at 1:13 am
(3) Clarence says:

I believe that all courts of law, state and national, do not make definitive definitions of terms to permit a gray zone for the peoples freedom. Black and white law definitions equal totalitarianism. We need the space. I think the Constitution was written for that purpose.

However, Sado-Masochism and B&d are consensual acts, animals cannot voice such consent and should be protected by law. Any act against human or animal species that is designed to torture or maim, mutilate, or otherwise render the victims life destroyed or abbreviated qualifies as obscene. Sex is not an obscene act even at the extremes that some go to.
Obscene is hurting someone without their consent. All animal abuse is obscene since they cannot consent.

November 13, 2010 at 8:07 pm
(4) d says:

“The greatness of a nation and its moral progress can be judged by the way its animals are treated.” ~ Mahatma Gandhi, Indian Statesman and Philosopher

If you would not do this to a child, then you should not do it to an innocent animal. Animals were put here to learn from, not to abuse for profit or other motives.
“He who is cruel to animals becomes hard also in his dealings with men. We can judge the heart of a man by his treatment of animals.” ~ Immanuel Kant, German Philosopher
I do not care what people do to themselves because they have protective laws. Animals do not have protections and they are our equals when it comes to feeling pain. Since humans and non-human animals feel pain, we humans need to be protected against that pain and hence animals need to be protected as well. It is up to us humans to make laws correctly with sentient beings having the protections they need.
“My doctrine is this: that if we see cruelty or wrong that we have the power to stop, and we do nothing, we make ourselves sharers in the guilt.” ~ Anna Sewell, English Novelist
Ask yourself if crushing a baby’s head with a shoe heel is normal. No, therefore, doing that to a kitten, puppy, colt, filly, or any animal that we, the stewards of the Earth, must protect, is instinctually and logically wrong. That is why they want to crush the trapped animals’ head – because it is so terribly nasty, brutish, insane, perverse. If they would not do that to themselves, then they must never do it to our innocent brethren. Certainly, the animal is there AGAINST ITS WILL just like if that were you or me getting a shoe heel stabbed into our brain via our ear.
“The time will come when men such as I will look upon the murder of animals as they now look upon the murder of men.” ~ Leonardo Da Vinci, Italian Painter, Sculptor, Architect, Musician, Engineer, and Scientist

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