Cultural policy USA

The arguments against Section 48

US v Stevens case poses serious threat to freedom of expression

In early October, the US Supreme Court will hear argument in US v Stevens, one of the most important free-speech cases to arise in years. At issue is whether a law that criminalises statutorily defined “depictions of animal cruelty” violates the First Amendment to the US Constitution, which guarantees freedom of speech against government intrusion.

Although few, if any, would advocate animal cruelty, everyone, animal lovers included, should hope that the court declares the law unconstitutional. Artists, art aficionados and all others who value freedom of expression have a particular interest in seeing the law invalidated.

The statute at issue, known as Section 48 (because of its place in the US criminal code) imposes criminal penalties (including imprisonment up to five years) on anyone who knowingly creates, possesses or sells a visual or auditory depiction of “animal cruelty” with the intention of placing that depiction in interstate or foreign commerce, unless the depiction possesses “serious” religious, political, scientific, educational, journalistic, historical or artistic value. For purposes of the statute, “animal cruelty” is defined to include all conduct in which a living animal is intentionally killed or wounded, and such conduct violates federal or state law, either where it occurred or where the depiction is possessed or sold.

Section 48 is problematic for a variety of reasons.

The statute does not criminalise animal cruelty, which is already illegal. Rather, Section 48 criminalises mere depictions of animal cruelty. But outlawing the depiction of conduct—even illegal, reprehensible conduct—is a dangerous encroachment on freedom of expression. Representations of bad acts are often central to political debates and artistic works. Few, if any, would doubt that lynching is an odious practice that should be ended, but that does not mean that depictions of lynching ought to be banned.

While proponents of Section 48 emphasise that the only depictions it penalises are those showing the intentional killing or wounding of an animal that is illegal where the conduct occurred or where the depiction is possessed or sold, that limitation is far less limiting than meets the eye. Bullfighting, for example, is illegal throughout the US. Accordingly, an illustrated edition of Hemingway’s The Sun Also Rises could run afoul of the law if the illustrations, be they photographs or drawings, depict actual bullfights. That bullfights are legal in Spain is irrelevant under the law.

Moreover, for a depiction to be criminalised by Section 48, the killing or wounding need only be illegal under some law or other. It need not violate a law against animal cruelty. Given the disparate nature of state laws in the US federalist system, this means that many depictions of conduct that is perfectly legal where it occurs and not universally condemned as an instance of animal cruelty will be criminalised by Section 48. For example, Washington, DC, bans all hunting. Thus, if a video depicting a deer hunt that took place in Pennsylvania, where deer hunting is allowed, were sold in Washington, DC, the seller would be subject to prosecution under Section 48 unless the video’s depiction possessed “serious” value.

In defending the constitutionality of the statute, the government contends that the “serious value” exception will protect all works with significant political, scientific, educational, journalistic, historical or artistic value. There are, however, at least two problems with that contention.

First, even purportedly insignificant expressive works ought to be protected from government censorship. The mere fact that an inane song is inane should not be grounds for censorship, let alone grounds for imprisoning the singer.

Second, forcing artists and others to rely on the “serious value” exception to avoid jail will inevitably chill expressive conduct given the reasonable fear that prosecutors and jurors might not recognise a work’s serious value.

History is replete with examples of now famous and canonical works that were initially dismissed as “not art”. There is, for instance, Marcel Duchamp’s Fountain—a urinal mounted 90 degrees to its usual position and signed pseudonymously “R. Mutt”. In 2004, the Dadaist piece, replicas of which are now displayed in museums around the world, was voted “the most influential modern art work of all time” by a panel of 500 experts. But in 1917, when Duchamp first submitted the piece for inclusion in the exhibition of the Society of Independent Artists in New York, it was hidden from view as having “no darn place in an exhibition of art”. Indeed, as reactions to its selection as the most influential modern art work attest, even today some people still deny that Fountain has any—let alone “serious”—artistic value. Other famous works that were initially dismissed as “not art” include Andy Warhol’s Campbell Soup tins and Roy Lichtenstein’s comic-strip inspired paintings.

Cognisant of this history, artists, particularly conceptual and avant-garde artists, will likely avoid depictions that could fall within Section 48’s reach save for the “serious value” exception. Prominent artists who might be inhibited by the statute include Adel Abdessemed, whose Don’t Trust Me video installation shows footage of various animals being slaughtered with a sledgehammer, Hermann Nitsch, whose performances include the disembowelling of lambs, and Wim Delvoye, who tattoos pigs.

The danger that Section 48 will inhibit artistic and other expression is compounded by the fact that the statute does not require that a work be considered as a whole when judging whether the depiction in question possesses “serious” value. Thus, the fact that The Sun Also Rises is undoubtedly a piece of serious literature would not necessarily protect the publisher of an illustrated edition if a prosecutor or jury decided that an illustration of a bullfight lacked “serious” value, whether because it was of poor quality or unnecessary to the accompanying text.

Even animal rights activists ought to be concerned by Section 48. There is nothing in the statute that would prevent a prosecutor from bringing charges against a member of the People for the Ethical Treatment of Animals (PETA) who sold a video depicting, say, the slaughter of baby seals. If charged, the PETA member would likely claim that the video possesses “serious” political value, but he or she would be subject to the same risk as Adel Abdessemed and the publisher of an illustrated edition of The Sun Also Rises.

Freedom of expression is for all. Section 48 is for the birds.

The writer is a partner, based in Washington, DC, of the Supreme Court and appellate practice group of the law firm Mayer Brown LLP. He has filed a brief in support of the Stevens defendant on behalf of the National Coalition Against Censorship and the College Art Association

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