Friday, April 23, 2010

Free Speech and Animal Cruelty

On 13th April, the United States Supreme Court rejected laws preventing the sale of animal cruelty videos.
The 8-1 vote last Tuesday overturned the 1999 federal statute prohibiting the sale of “any depiction” in which “a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” The rejected law essentially prohibited graphic depictions or media of what is already classified as illegal animal cruelty.

The 1999 law was drafted in response to an illegal trade in videos which filmed small animals being crushed to death by women in high-heeled shoes. In overturning this law, the Supreme Court based their decision on the Constitution’s First Amendment, which reads,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In case you missed the part about filming illegal acts of violence against animals, I’ve put that part in italics. On the basis that Congress cannot pass a law “abridging the freedom of speech”, the Supreme Court felt that it was appropriate to overturn the 1999 statute.

The First Amendment and Free Expression

Justice Alioto, the one dissenting judge, noted that the rejected law was never intended to suppress speech, but to prevent the creation and commercial exploitation of horrific acts of animal cruelty as a form of depraved entertainment.
Justice Alioto is clearly in the minority. Conventional wisdom – backed up by dozens of court verdicts – has long held that the Constitution’s First Amendment protects not simply the political opinions printed in newspapers, but “free expression” in the broadest sense. Over the years, the First Amendment has been brought to the defence of everything from child pornography to bestiality. In the 1987 case Wilkinson v. Jones, the Court used the First Amendment to make it illegal for states to prohibit the broadcasting of nudity, sex acts and other indecent material.
There is a great irony here. As anyone with even a modicum of historical knowledge will know, the First Amendment was originally intended not to protect the freedoms of individual citizens so much as to act as a hedge against the power of the Federal Government (Congress) over the legislatures of the states. Hence, the Amendment reads “Congress shall make no law.” It says nothing about what the states can or cannot do.
It was not until the landmark Gitlow V. New York ruling of 1925, that the Supreme Court began to hold that the First Amendment’s free speech protections also limited what laws the states could pass. This paradigm shift turned the First Amendment into a mandate for the federal government to interfere with the government of the states (exactly the opposite of how it was originally intended). Indeed, this was the basis of the Supreme Court decision in in 1969 to strike down a school dress code prohibiting armbands (Tinker v. Des Moines). In 1989, the Supreme Court struck down the laws in 48 states prohibiting the public desecration of American flags.
The recent ruling on violent animal videos did not use the First Amendment to strike down a law passed by a state. Instead, they used the First Amendment to strike down a federal law that arguably (on the basis of the 10th Amendment) should have been left with the states in the first place. Yet now any state that does want to pass laws prohibiting the trade of violent videos could find themselves in violation of the Court’s binding interpretation of the Constitution.
The Myth of Free Speech
The philosophical milieu behind these and other decisions is the assumption that human beings have an innate and inalienable right to free expression. From a Biblical perspective this assumption can certainly be challenged. When Adam and Eve took of the forbidden fruit, their sin did not become right merely because they were expressing themselves. Similarly, the Bible no where gives us the right to free speech, but tells us to restrain our tongues and exercise control over what comes out of our mouth (Psalm 141:3; Proverbs 10:19; 17:27-28; 21:23; 29:11; James 3:3-6; James 1:19-20). Nor is the Bible silent on how we can express ourselves with animals: “A righteous man regards the life of his animal, but the tender mercies of the wicked are cruel.” (Proverbs 12:10)
(Exactly what role the government can legitimately play in suppressing sinful expression is another matter altogether. Biblical law did make a distinction between those things that are sins, such as unkind speaking, and those things which are both a sin and a crime, such as homosexuality.)
But just as the Bible does not grant unqualified freedom of speech, neither do modern liberals. Although they have used the banner of Free Speech to defend everything from public displays of sodomy to child pornography, the same activists are quite content to impose limits on free speech when those limits are against Christians.
What role did free speech play in the minds of Californian liberals when they tried to make it illegal for businesses, adoption agencies and insurance companies to continue defining “marriage” in the traditional way? What role did free speech play when the American Civil Liberties Union (ACLU) tried to halt the singing of Christmas carols in public facilities. Free speech factored large when the same organization tried to legalize child pornography, but was conspicuously absent when the same lobby group opposed voluntary school prayer. Or again, free speech was central when the ACLU and other liberals supported public demonstrations for Nazis and communists, but not when the same activists lobbied to criminalize public demonstrations by pro-lifers or to push all remnants of Christianity out of the public square.
Finally, where was “free speech” last December when the D.C. City Council demanded that all city contractors, including faith-based charities, acknowledge a new definition of ‘marriage’?
What emerges is a strange fusion of apparent polarities. On the one hand, we have a push to move free expression towards ever more bizarre levels of public indecency. On the other hand, we have the shrill and virulent attempt to suppress free expression if it cuts across the ideology of the status quo. The irony is that the same people and groups that have embraced the former, are just as quick to embrace the later without, apparently, perceiving any inconsistency.
In one sense, this should come as no surprise. Western society is becoming a knife edge between the pressure for growing control and the push for increasing permissiveness. These two polarities, though seeming opposites, are actually reinforcing poles of the same self-destructive cycle. When morality and social responsibility no longer govern a society, the result is both lawlessness as well as increasing levels of legislation seeking to quell the tide of moral anarchy.
There can be no return to freedom without first returning to the morality and social responsibility that makes a free society able to function in the first place. Freedom without a sense of collective wisdom and social responsibility is like a child who devours its mother and then shrivels up and dies because it has cut itself off its only source of nutrients and life. Freedom of speech, tolerance and human rights and all the other slogans of the secular state, were birthed by a Christian society yet have now turned back to kill their life-source. Detached from transcendent law, moral responsible and wisdom, these virtues have become vacuous trump cards to elevate any desire – no matter how morally objectionable – into a right.
This process completed itself with the recent ruling. The highest court in the nation has now assured us that one of America’s most treasured freedoms – the freedom of speech – guarantees citizens the right to buy and sell footage of animals being tortured.
Granted, the rejected law was worded too broadly. If taken literally, it could have outlawed portrayals of hunting and fishing or instructional videos teaching people how to humanely butcher animals. However, that isn’t really the point. The point is that by striping these and other matters out of the hands of the legislatures where they properly belong and turning them into issues of constitutional rights, the Supreme Court is stretching the meaning of America’s founding document almost beyond recognition. 
But this is only the tip of the iceberg. Consider that the Supreme Court has authoritatively decreed that all American women have a “constitutional right” to an abortion. In recent years the constitution has been used by U.S. Court of Appeals to prohibit states from allowing parents to have a say in what the government is teaching their children about sex. The courts have also told Americans that the constitution prohibits school teachers from telling their students about the intelligent design theory in science class, even though it allows teachers to tell students how to be a homosexual. When California tried to pass legislation preventing illegal immigrants accessing free government services, it was struck down on the grounds that the constitution guarantees illegal immigrants free access to government handouts. 
America’s third president, Thomas Jefferson, warned of exactly this sort of thing when he said that the federal judiciary is
“working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one.”

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This article will be appearing in the monthly magazine of Christian Voice , a UK ministry whose website is The article is reprinted here with permission.
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