Dog-fighting videos: a free speech issue

Pit bull fighting is not the most likely starting-point for a debate about freedom of speech. Yet this week, following a US Supreme Court ruling in favour of a man previously imprisoned for producing videos of the pugnacious terriers, that’s precisely what it became.

‘Generations and generations of pit fighting have resulted in a very tough animal. These dogs will continue fighting even though most of their ear or a section of their mouth has been chewed off – or a leg rendered inoperable.’ This is an excerpt from the 1983 pit bull-loving classic Dogs of Velvet and Steel, penned with enthusiasm rather than good grammar by Robert ‘Bob’ Stevens, a 68-year-old from Virginia. Judging by the many drooling, teeth-baring passages elsewhere amongst its 400-odd pages, it is fair to say that Stevens has a bit of a thing for pit bulls. He is fascinated by them – drawn inexorably, it seems, to the breed’s ‘gladiatorial tendencies’. As he readily admits, ‘I attended many pit fights and saw some real deep, hard biters’. Unfortunately for Stevens, this love of all things pit bull was to land him in serious trouble.

So it was that in 2005, Stevens became one of the first people to be convicted under the Depiction of Animal Cruelty Act, serving just over three years in prison. This was nothing to do with Dogs of Velvet and Steel itself; rather it concerned a series of films he had been selling under the same title. These featured, as you might expect given the defining obsession of Stevens’ life, pit bulls fighting. Not just footage of any old pit bulls fighting, but footage of pit bulls fighting in Japan, a country where dog fighting is still legal.

The problem for Stevens, however, was that the Depiction of Animal Cruelty Act covered this. Drawn up in 1999 by US Congress in response to so-called ‘crush’ films – films showing attractive women crushing small animals to death, a craze which, I suspect, passed many of us by – this law prohibited the portrayal of living animals being ‘intentionally maimed, mutilated, tortured, wounded, or killed’. It was irrelevant, under the terms of the law, that the act being portrayed was legal in the country where it took place. It was enough for that conduct to violate federal or state law where ‘the creation, sale, or possession takes place’. Under this law, Stevens’ desire to express his love of pit bulls fighting was a criminal act.

Which is surely a good thing, right? After all, banning films of dogs fighting, maiming and mutilating each other is no great loss to civilisation. In fact, such ‘portrayals’, such ‘expressions’, sound pretty uncivilised, barbaric almost. A good, progressive law, then?

Well, no, not really. In fact this law contains within itself a regressive, anti-democratic, anti-freedom germ. It implies that it is up to the state to declare what is a worthy object of expression and what is not. Which is why this week’s US Supreme Court ruling, declaring the law unconstitutional insofar as it violates the First Amendment, is so welcome.

As the Supreme Court views the matter, the 1999 legislation means that the state divides up the wealth of human expression into that which is worthy of protection under the First Amendment and that which is not. So while the pit bull fighting vids of someone like Stevens were not considered to be protected forms of expression, other types of so-called animal cruelty, such as hunting videos, with, as the original statute put it, ‘serious religious, political, scientific, educational, journalistic, historical, or artistic value’, are exempt. This is a highly suggestive clause, a sentence that suggests that the state has reserved the right to say which forms of human expression are worthy or useful, and thus should remain free.

With regards to that sentence in the original statute, the Supreme Court was unequivocal: ‘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 balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs.’ And then, in a passage that brooks no compromise or concession, the Supreme Court says: ‘Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.’ There you have it: a defence of people’s freedom, our freedom of speech, that pays heed to the universal form of freedom, not its particular exercise – whether that involves the production of a set of dog-fighting DVDs or a call for the Caliphate.

This is an important argument. Today, free speech comes with qualifications attached, caveats imposed. Often a Western politician will declare ‘I believe in freedom of speech’ before following it up with the killer conjunction, ‘but…’ They will then go on to say that not all content should be expressed, that there are some things – in the UK, for instance, the glorification of terrorism – that do not deserve to be freely expressed. Such expressions are deemed to incite, corrupt, deprave. The logic here is indeed startling and dangerous: our governments regard our freedoms, our freedom of speech, not always to be in our own best interests. We are not able to cope with our own freedoms, freedoms that in the US have been enshrined in the Bill of Rights. It was this kind of patronising perspective that made the US government believe it was okay to pass legislation which arrogated to itself the right to decide what was worthy of protection under the First Amendment, and what was not.

The one member of the Supreme Court who objected to the ruling against the Depiction of Animal Cruelty Act, Justice Samuel Alito, argued that the court was in danger of legitimising ‘a form of depraved entertainment’. And depraved it may well be. But that is a moral argument, and as such it ought to be up to citizens, viewed as individuals capable of moral reasoning, to decide whether or not to indulge in or observe such ‘entertainment’ as part of their broader decision-making about how to live their lives.

You may not be a fan of dog-fighting videos; you may even think they sound pretty grim. But it’s still worth defending someone’s right to produce them.

Tim Black is senior writer at spiked.