During the case of United States v Stevens in which Robert Stevens was convicted of selling depictions of animal cruelty, the United States solicitor general told the Supreme Court during the request for a hearing that “depictions of the intentional infliction of suffering on vulnerable creatures play no essential role in the expression of ideas.” I completely agree with this statement because the depiction of animal cruelty is not a form of expression that should be protected by the First Amendment.
Going as far back as 1971 and the Cohen v. California case, expression was defined as speech that communicated ideas and emotions. The intentional harm of vulnerable animals neither displays one’s ideas or emotions, but is also inhuman. However, what the courts must distinguish is of those who do not commit the act, but simply view it.
We can draw connections to this topic by looking at another big court dilemma, child pornography. In New York v. Ferber, it became illegal for the promoting, distributing, and producing of material that contained child pornography. The law against animal cruelty is also very similar. Now, the law also is similar to the definition of obscene material established in Miller v. California in 1973. The part of material that lacks “serious religious, political, scientific, educational, journalistic, historical or artistic value” can be considered illegal, which crush videos were.
It is a question though, that what is the difference from a crush video from a Hollywood movie that shows a chicken being beheaded or an animal being shot. However, in my opinion there is very defined difference. The law that is in question states that animal cruelty is any “auditory depiction” of the torture or mutilation of a living creature. Hollywood movies declare that the making of films where animals are depicted as being hurt, are not real. Crush videos are definitely real.
Keeping with the film genre, what about documentaries that may display hunting or fighting between animals? I feel that there must be serious journalistic or artistic merit in order to film this. If it is part of nature, that is no question, but in terms of hunting and documentaries I feel that if it is validated by real significance connected to journalistic approaches or teaching then this speech is protected.
Are these videos obscene? Well according to Justice Brennan in the Miller v. California case, obscenity cannot be punished by an offense theory when it related to sexual material that offended community values. He changed his view to the act of consenting adults being able to view or engage in any sexual speech they wanted as long as it did not hold a captive audience or children. In regards to these videos, there is no captive audience and therefore adults should have the privilege of viewing and creating these videos.
The law is now under question based on Robert Stevens and his prosecution for making dog-fighting videos. The law is in question because Stevens defense is that he was filming the dogfights for a documentary and was not endorsing illegal dog fighting. In the exceptions listed above, a documentary could be seen as a serious journalistic approach to animal cruelty. However, another question arises of what counts as serious value?
Is the law overly broad? In one way. I think the law needs to be more specific on what is serious value because I think Stevens should be protected. I think, if possible, the law should be re-written to punish those videos or media that depict real animal cruelty for unnecessary purposes. When I say this I mean that videos, such as crush videos, that depict an unnecessary reason to harm or kill animals should not be allowed the same rights as videos that promote hunting or cultural forms of animal cruelty. So, to ban this form of speech the court would have to have a compelling reason and precise judgment on the form that the animal cruelty is in.
The law in question, which was made in 1999, does not forbid the viewing of crush films; it only forbids the selling, possessing, or creating of a crush video. The act of viewing one is fine due to the fact that most of them are not made in the United States, but in countries where they are legal to make. The videos are uploaded to certain websites and able to view by the world. So, how is it possible to expand the law to illegal to view crush videos? The fact is, that it is impossible. The rights to view crush videos that were legally made outside the U.S. is and should be protected under the First Amendment.
In the review of the Stevens case, I found what some of the judges said as very interesting. When Justice Roberts said that you “have to look at the content” which I completely agree with. I also agree with Justice Scalia when he said, “It’s not up to the government to tell us what our worst instincts are..Once you allow this law, what other base instincts do people have?” This a really good question, but in terms of the unnecessary harm of animals, government should able to punish inhuman instincts, actions, and also the images that display them.
Like previously stated, my view is based on the content of the animal cruelty. In the case of crush videos, I find the making, selling, and possessing any media that shows the unnecessary harm, torture, or killing of an animal is deemed punishable by the law created in 1999 because of its content. However, the law also is capable of banning material that does not display unnecessary animal cruelty as in hunting or documentaries that depict true journalistic value. In the Stevens case I find that he violated the law that was placed, but his challenge against the law is acceptable for the laws view of content is overly broad.
Sunday, November 8, 2009
Sexual performance and sexual conduct by children is something that is both harmful and offensive in regards to child pornography. However, in the form of art, can child nudity be acceptable? The case of Sally Mann, an American photographer, came under public and critical pressure when she published a book entitled Immediate Family. The book depicted her three children, all under the age of 10, in everyday life. It followed them through playful, depressing, and sleeping habits. However, why it was so controversial was that Mann photographed her children nude and many people found this form of art as child pornography. The question arises then: are her photos of her family child pornography?
I personally do not consider Sally Mann's photographs of her children to be child pornography. They are the expression of an artist and a mother. As she puts it when she responds to critics, "natural in the eyes of a mother." This is a great quote that puts a line between pornography and art. If we examine other forms of art and child pornography, we could look at film. In many films, there is a "portrayal" of underage nudity. In 1998, with Titanic, Kate Winslet plays a 17 year old who appears naked on screen. Although, Kate Winslet was over age, her character was underage, which panders the idea of child pornography. Also in the 1990’s film Kids, there are actual underage actors engaging in sexual activity. Though, it is not seen, it is highly implied. So, a big question could be what is it about child pornography in art that offends or harms us?
John Stuart Mill's philosophy on harm and offense can apply to the topic of child pornography. Mills' harm principle says that an individual is free to act on their own will (taking nude photos of their children) as long as it does not harm others. Are the photos harming others? I can see them as offending, but not harming. Joel Feinberg and his offense principle tell people that offensive material in books can be easily avoidable. I find that due to the fact that under parental permission, the pictures do not harm those involved and cannot take such a drastic claim as "being harmful" to others. On the basis of offense, a much lesser charge, I find that there can be offense, but that it is also avoidable.
In the case of Osborne v. Ohio, the topic of child nudity was being tested. The state of Ohio defined child nudity as "graphic focus on the minor's genitals," and many pictures in Sally Mann's book there are pictures of her children naked, but I do not find there to be graphic focus in any of the photos. Photos such as this, I find are more art than offensive. Also, the Ohio law prohibits showing a minor in a state of nudity permissible with the minor's parents have consented with such photographs. In this case, Mann photographed her own children for the purpose of art.
I do not think I would change Ohio’s law and its definition because I already find it too broad. The law stated that nudity is defined as “lewd exhibition of nudity” and I do not find any of the photographs as lewd and also do not believe the art as a whole depicts focus on a minor’s genitals in a lewd (crude and offensive in a sexual way) or offensive way. I consider pictures that display children being portrayed in a sexual way as in engaging in sexual activity or implied sexual activity as lewd and offensive. However, we must also consider the children themselves. In this case, as their mother was taking the pictures I do not see the pictures causing harm to them either.
There is also the issue of if the book should be taken as a whole or parts. Art must be taken as a whole and not divided or torn apart into pieces. If we were to take this photograph and chop it down to only focus on the genitals, it would not be fair because art must be seen as a whole. The historic art piece of Michelangelo’s David, seen below, and countless Greek and Roman art depict children in the nude and sexual activity. In an example of an hour long movie that depicted lewd and graphic display of child genitals as in my definition of lewd, it shall not be protected. What taking art as a whole protects is meant by context of what is being displayed and the situation. I think Mann, as an artist, was displaying the role of a photographer and a mother.